Navy-Marine Corps Court of Criminal Appeals (NMCCA) Digest
Jan 1, 2000 – Current Term
DISCLAIMER: The digest of opinions constitutes no part of the opinions of the United States Navy-Marine Corps Court of Criminal Appeals and it does not represent the official position of the Court. The digest has been prepared by a member of the Court’s staff for the convenience of the public. The digest summarizes key issues from the various opinions of the Court.
- First Principles
- Jurisdiction
- Generally
- In Personam
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United States v. Stevenson, 65 M.J. 639 (2006)
The appellant declined disability retirement pay to receive VA benefits. His entitlement to receive retired pay, not the actual receipt of retired pay, provided personal jurisdiction pursuant to Art. 2(a)(4).
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United States v. Davis, 62 M.J. 533 (2005)
Military judge erred when he terminated proceedings due to lack of personal jurisdiction. The case was sent back for a rehearing on sentence by our superior court, but before the rehearing took place the Navy administratively discharged Appellant for his misconduct. The doctrine of continuing jurisdiction indicates that the appellate court, once jurisdiction has been conferred, retains jurisdiction until the conclusion of appellate review. That same doctrine indicates that the trial court retained jurisdiction, in carrying out the appellate court’s mandate to conduct a rehearing.
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United States v. Harmon, 60 M.J. 776 (2004)
Where CID initiated an investigation, between 0545 and 0658 on 17 May 2001, into an attempted robbery committed by appellant at 0520 the same morning, which identified appellant as a suspect by 0815, the delivery of a discharge certificate at 0900 by appellant’s command, who was unaware of the investigation at the time does not sever court-martial jurisdiction. In further proceedings at CAAF the question of whether the investigation was enough to sustain jurisdiction was not reached because CAAF upheld jurisdiction based on the separation not being effective until 2359 on 17 May 2001 and that the command actually revoked the separation orders and placed appellant on legal hold before that. United States v. Harmon, 63 M.J. 98 (CAAF 2006).
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Lawrence v. Maksym, 58 M.J. 808 (2003)
Personal jurisdiction remains over inactive reservists, after completion of their active service for offenses that occurred during active service. As long as member did not completely terminate his status as an inactive reservist, member may lawfully be recalled to active duty for court-martial.
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United States v. Morris, 54 M.J. 898 (2001)
In Personam jurisdiction exists, pursuant to Articles 2 and 3, UCMJ, over Fleet Marine Corps Reserve Member who is receiving “retainer” or “retired” pay. Although it is unclear that the RCM 204(b)(1) requirement that a member of a reserve component be on active duty before trial, applies to retirees or a member of the Fleet Reserve and Fleet Marine Corps Reserve, appellant was on active duty before his trial.
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United States v. Oliver, 56 M.J. 695 (2001)
The Government need not prove personal jurisdiction at trial. The Government only has an affirmative obligation to prove personal jurisdiction when the appellant raises the issue at trial. The appellant may also raise the lack of personal jurisdiction over him on appellate review; however, in this case the appellant was on active duty at the time of trial because of his medical hold.
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- Subject Matter
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United States v. Toy, 60 M.J. 598 (2004)
18 U.S.C. §3283 (1994) has no effect on the statute of limitations provided under Article 43, UCMJ.
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United States v. Hundley, 56 M.J. 858 (2002)
There is no need to resort to a functional analysis of a unit if it is a titled battalion, designated as such under the Total Force Structure process. If so, it has the authority to convene a special-court-martial. Here, the HQ and Support Battalion of the School of Infantry is empowered to convene special courts-martial.
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- Of Trial Court
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Taylor v. Garaffa, 57 M.J. 645 (2002)
The MJ did not err when he denied the appellant’s motion to limit the jurisdiction of his special court-martial to impose punishment. Petitioner’s offenses were alleged to have occurred before 15 May 2002, the date that the jurisdictional maximum sentence a special court-martial may impose increased to 1 year of confinement, reduction to E-1, 2/3 forfeitures for 1 year, and a BCD. Petitioner’s trial was convened after 15 May 2002. It does not violate the ex post facto clause of the Constitution.
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United States v. Thomas, 56 M.J. 523 (2001)
A court-martial composed of a military judge alone had jurisdiction to try the appellant for premeditated murder when the convening authority modified his original capital referral to a noncapital referral in accordance with the pretrial agreement.
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- Of Courts of Criminal Appeals
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United States v. Ribaudo, 60 M.J. 691 (2004)
Within the time period after a decision of the NMCCA that a petition for reconsideration or petition for review could be filed, but has not been filed with the Court of Appeals for the Armed Forces, NMCCA retains jurisdiction to decide a motion to vacate the final judgment and set aside the findings sentence based on the death of the appellant. Since appeal is a matter of right for those cases that meet the criteria under Article 66, UCMJ, NMCCA will abate the conviction ab initio of an appellant who dies before the date of NMCCA’s decision. Once a decision has been rendered by NMCCA, the appeal of right under Article 66 has been received and the death of the appellant will have no effect.
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- Of U.S. Court of Appeals for the Armed Forces
- Constitutional Matters
- Generally
- Confessions
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United States v. Cuento, 58 M.J. 584 (2003), rev’d other grounds 60 M.J. 106 (CAAF 2004)
The appellant’s Due Process rights were not violated by the way the Government obtained the appellant’s confession. Although the appellant asserts that he had to confess to complete the Juvenile Court’s mandated counseling, in order to see his children again, we do not find any evidence that the Government authorities were acting in concert to coerce the appellant into an involuntary confession.
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- Confrontation
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United States v. Cabrera-Frattini, 65 M.J. 950 (2008)
Admitting a deposition of teenage minor [TO] into evidence at trial did not violate appellant’s Sixth Amendment Right to Confrontation, where military judge properly found that TO was unavailable to testify, and where the appellant’s Individual Military Counsel (IMC) had a full and fair opportunity to effectively cross-examine TO during the deposition.
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United States v. Harris, 66 M.J.781 (2008)
The Court held that the military judge’s findings that no prosecutorial conduct took place were not clearly erroneous where the military judge found that the Government attorney did not coerce a witness into recanting a false affidavit. The defense witness, a friend of the appellant, initially admitted in an affidavit to putting methamphetamine in the appellant’s drink, but later recanted. The Court noted that the Government attorney properly asked whether the witness wanted an attorney present prior to discussing the affidavit, and that the question did not amount to a threat. The Court found that the prosecutor’s forwarding of the affidavit to local law enforcement was proper, and did not amount to a threat, because the affidavit contained admissions of criminal conduct. The Court noted that the Government attorney did not ask local law enforcement to coerce the witness into recanting, and that the local law enforcement officer accurately advised the witness that the affidavit constituted an admission of criminal conduct. Finally, the Court noted that the witness admitted that the appellant offered the witness money to make the false statement.
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United States v. Rankin, 63 M.J. 552 (2006), aff’d, 64 M.J. 348 (CAAF 2007)
Personnel records used to convict the appellant of unauthorized absence did not qualify as “testimonial” under Crawford v. Washington and, therefore, did not violate the Confrontation Clause.
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United States v. Camacho, 58 M.J. 624 (2003)
After the Government completed its case on the merits, a recess was taken. The senior member allegedly told the legal officer of the appellant’s command, who was also a witness for the Government, that it was execution time. Ultimately, the military judge excused the member, leaving only 2 members. After discussions on how to resolve the issue, all parties agreed to get more members detailed, conduct voir dire and empanel new members. 2 were eventually empanelled. The original members were excused and counsel read their opening statements to the new members. A transcript of the testimony was read to the new members pursuant to RCM 805. This process and the RCM does not violate to constitutional right of the appellant under the confrontation clause. Additionally, the defense agreed to this procedure.
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United States v. McDonald, 53 M.J. 593 (2000)
Confrontation Clause does not apply to post-conviction, non-capital, pre-sentencing proceedings and R.C.M. 1001(e)(1) affords the military judge the discretion to utilize telephonic testimony of Government witness over defense objection.
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United States v. Hollis, 54 M.J. 809 (2000)
Admissions of out-of-court statements by child victim of sexual assault do not violate the confrontation clause.
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- Cruel and Unusual Punishment
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United States v. Evans, 55 M.J. 732 (2001)
Appellant’s post-trial confinement did not violate Article 8 of the Constitution where he failed to demonstrate that the medical staff of the brig staff exhibited a deliberate indifference to his serious medical needs.
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- Double Jeopardy
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United States v. Terry, 61 M.J. 721 (2005)
Appellant’s second trial did not violate the Double Jeopardy clause of the Constitution. On initial review this court set aside all findings and specification due to a Sixth Amendment violation of a right to a public trial and authorized a rehearing. As long as the set aside is not due to factual and/or legal insufficiency, retrial does not violate the Double Jeopardy Clause. The first review should have addressed the assignments of error alleging factual insufficiency. The second court did and found the offenses at the first trial to be factually sufficient.
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- Due Process
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United States v. Bredschneider, 65 M.J. 739 (2007)
Appellant was denied the right to due process, even without a specific showing of prejudice, due to a 7-year delay in post-trial processing. Although not a Barker-type due process violation, the Court held that a delay of 7 years for a 77-page case would adversely affect the public’s perception of the military justice system and denied appellant the right to speedy post-trial review.
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United States v. Stevenson, 65 M.J. 639 (2006)
The MJ did not commit an abuse of discretion by implementing remedial measures regarding the Government’s destruction of potentially exculpatory evidence. No right to evidence that was lost or destroyed exists. The Government did not act in bad faith, and the evidence was no more than “potentially useful” to the appellant.
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United States v. Singh, 59 M.J. 724 (2004)
Neither Secretary of the Navy Instruction 5820.6 (5 Nov 1968) nor the Vienna Convention on Consular Relations confer an individually enforceable right to notification and assistance from the foreign consul of the country of nationality of a non-U.S. citizen service member.
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United States v. Ellis, 54 M.J. 958 (2001)
The appellant was not denied due process under the law when the victim’s brain and cranial covering were inadvertently discarded prior to trial. Comparable evidence was introduced at trial, at the time of the disposal the missing evidence did not possess any exculpatory value known to the government, and the government did not act in bad faith.
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- Equal Protection
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United States v. Gaines, 61 M.J. 689 (2005)
The Appellant has not been denied the equal protection of the law due him under the Due Process Clause of the Fifth Amendment because the appellant court judges are not assigned to the court for a fixed period of time as opposed to the Army Court judges. The US Supreme Court and Congress have authorized and sanctioned differences between services and between military courts and Article III courts.
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United States v. Lugo, 54 M.J. 558 (2000)
Different uniform regulations for male and female Marines, in and out of duty status, do not violate the Equal Protection Clause of the Fourteenth Amendment as applied through the Due Process Clause of the Fifth Amendment.
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- First Amendment
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United States v. Smith, 61 M.J. 696 (2005)
18 U.S.C. 2257, which requires record-keeping on all performers in visual depictions of pornography that will be transported in interstate commerce, is a content neutral restriction on free speech which is constitutional as it relates to the legitimate Government interest at preventing child pornography.
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- Right to Counsel
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United States v. Morgan, 62 M.J. 631 (2006)
“Good cause” did not exist to justify removal of detailed defense counsel after remand for new post-trial processing. On remand, the detailed defense counsel’s supervisor sent a letter requesting her removal from the case based on her duties as an SJA. The SJA’s existing duties were insufficient to satisfy the “good cause” standard of R.C.M. 505, and did not warrant severance of the attorney client relationship. Prejudice was presumed.
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United States v. Dickinson, 65 M.J. 562 (2006)
The appellant submitted an IMC request, which was granted. One of two detailing authorities then permitted his detailed defense counsel to remain on the case. The second detailing authority later removed the appellant’s detailed counsel. The MJ erred when he permitted the government to sever the attorney-client relationship, because absent consent of the accused, the attorney-client relationship cannot be severed without “good cause.” The government only demonstrated administrative convenience, and not the requisite extraordinary circumstances to satisfy the “good cause” standard.
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United States v. Cuento, 58 M.J. 584 (2003), rev’d other grounds 60 M.J. 106 (CAAF 2004)
The trial counsel did not improperly elicit testimony that commented on the appellant’s right to counsel. The witness volunteered the testimony, stating that the appellant retracted his confession after talking to his lawyer. The witness then attempted to retract the testimony, the trial counsel did not delve further into the comment, and the trial defense counsel did not object. We find no plain error. We do find error in the trial counsel’s comment about this testimony in his closing argument on the merits. However, we find that the error was harmless.
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- Right to Present a Defense
- Right to Jury Trial
- Right to Speedy Trial
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United States v. Dowty, 57 M.J. 707 (2002)
Appellant’s speedy trial rights were not violated when the Government failed to bring him to trial within 120 days of the decision to grant the Government’s appeal pursuant to Article 62, UCMJ. In this case, the appellant’s sought further review of that decision with our superior Court. He also asked for other delays in the case.
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- Search and Seizure
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United States v. Flores, 63 M.J. 557 (2006)
Voluntarily abandonment of property relinquishes the reasonable expectation of privacy in that property, and, thus the standing to challenge the search. However, discarding property in reaction to an illegal search does not deprive an accused of his standing to object to the illegal search. The MJ did not abuse his discretion when finding that the appellant abandoned his property prior to the commanding officer’s initiation of the illegal search.
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- Ex Post Facto
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United States v. Ratliff, 65 M.J. 806 (2007)
The Ex Post Facto Clause of the Constitution would not be violated by permitting prosecution of appellant’s alleged misconduct involving child sexual abuse under an extended statute of limitations. The extended statute of limitations for child abuse offenses contained in Article 43, UCMJ, applies retrospectively to all offenses in which the original statute of limitations had not expired at the time the extensions were enacted.
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United States v. Orzechowski, 65 M.J. 538 (2006)
A new SECNAV instruction, which decreased the appellant’s “good time credit,” violated the ex post facto clause of the Constitution because his sentence was adjudged prior to the new instruction.
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- Jurisdiction
- Military Justice Personnel
- Defense Function
- Generally
- Right to Counsel
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United States v. Morgan, 62 M.J. 631 (2006)
“Good cause” did not exist to justify removal of detailed defense counsel after remand for new post-trial processing. On remand, the detailed defense counsel’s supervisor sent a letter requesting her removal from the case based on her duties as an SJA. The SJA’s existing duties were insufficient to satisfy the “good cause” standard of R.C.M. 505, and did not warrant severance of the attorney client relationship. Prejudice was presumed.
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United States v. Dickinson, 65 M.J. 562 (2006)
The appellant submitted an IMC request, which was granted. One of two detailing authorities then permitted his detailed defense counsel to remain on the case. The second detailing authority later removed the appellant’s detailed counsel. The MJ erred when he permitted the government to sever the attorney-client relationship, because absent consent of the accused, the attorney-client relationship cannot be severed without “good cause.” The government only demonstrated administrative convenience, and not the requisite extraordinary circumstances to satisfy the “good cause” standard.
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United States v. Allen, 59 M.J. 515 (2003)
Appellant’s statement to NCIS was properly admitted by the military judge despite Appellant’s claim that he was denied right to counsel because NCIS was aware he was represented by civilian counsel and previously invoked his right. In this case the appellant voluntarily re-engaged NCIS without his counsel’s presence. He was advised of his rights, including questions regarding whether he was still being assisted by counsel, and he voluntarily waived those rights.
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- Responsibilities
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United States v. Williams, 57 M.J. 581 (2002)
Attaching a letter from the appellant to the trial defense counsel, which indicated that the appellant requests a punitive discharge against the counsel’s advice, is error.
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- Detailed Military Counsel
- Individual Military Counsel
- Civilian Counsel
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United States. v. Odom, 53 M.J. 526 (2000)
The military judge did not err when he disqualified the accused’s civilian defense counsel where counsel had unwaivable conflict of interest (represented co-accused).
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- Appellate Counsel
- Experts, Investigators – Appointment to Defense Team
- Effective / Ineffective Assistance of Counsel
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United States v. Mazer, 62 M.J. 571 (2005)
The Appellant’s defense counsel were not ineffective for failing to request deferral of the forfeitures as his family was in severe financial hardship. Nothing in the record suggest that such a request was even plausible and the record as a whole demonstrate counsel’s competency in representation of this Appellant.
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United States v. Diaz, 61 M.J. 594 (2005)
Appellant’s attorneys were effective and conflict free. The post-trial DuBay hearing findings of fact, which were not clearly erroneous, indicate that no actual conflict of interest existed (counsel represented a petty officer in an unrelated court-martial who was a victim of the Appellant in other uncharged misconduct) and that the attorneys had a rationale basis for not presenting good military character evidence.
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United States v. Dearing, 60 M.J. 892 (2005) aff’d in part and rev’d in part (on other grounds),63 M.J. 78 (CAAF 2006)
Appellant’s counsel were not ineffective for failing to raise the involuntary intoxication defense as opposed to a voluntary intoxication defense. There is no prejudice especially considering the answers appellant provided to trial counsel on cross-examination which appeared to undermined the very defense he now asserts should have been raised.
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United States v. Jenkins, 62 M.J. 582 (2005)
Appellant’s counsel was not ineffective despite allegations that counsel failed to adequately explore a potential defense and attempt to enter a pretrial agreement. An IAC claim requires more than generalized dissatisfaction of counsel.
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United States v. Siler, 60 M.J. 772 (2004)
A Staff Judge Advocate or Convening Authority has no duty to ascertain whether substitute defense counsel assigned for post-trial processing has formed an attorney client relationship with an accused, but where they have asked and been told specifically that no attorney client relationship has been formed they may not proceed to execute a convening authority’s action before confirming that the accused does indeed have representation by counsel with whom an attorney client relationship has been formed.
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United States v. Starling, 58 M.J. 620 (2003)
The bare allegations in the appellant’s brief do not meet the burden of showing that his trial defense attorney’s representation was deficient. The appellant asserts that his attorney was deficient by failing to offer any evidence in extenuation and mitigation during the sentencing hearing and by failing to submit any post-trial clemency matters. In this case, the Government introduced the appellant’s service record documents and the trial defense counsel commented about the favorable information contained therein. Because the appellant has failed to indicate, what if any, the defense attorney failed to do, he fails in his initial burden of showing deficient performance.
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United States v. Vandyke, 56 M.J. 812 (2002)
Trial defense counsel was not ineffective for failing to raise the husband-wife privilege where it did not exist. Likewise, TDC was not ineffective for failing to raise a potential defense, that he was entitled to the amount of money he was convicted of stealing. Under these facts, no defense of self-help was available to him.
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United States v. Morris, 54 M.J. 898 (2001)
The inactive bar status of trial defense counsel does not amount to a per se deprivation of the right to counsel. There is no support to the allegation that trial defense counsel’s provided inadequate representation.
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United States v. Oliver, 56 M.J. 695 (2001)
The trial defense counsel was not ineffective. First, there is not duty, without a request from the appellant, for the TDC to find civilian counsel. The TDC’s tactical decision not to object to certain evidence was consistent with his theory of the case.
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United States v. Thomas, 56 M.J. 523 (2001)
Trial defense counsel was not ineffective in failing to get a competent and objective evaluation of the appellant’s mental responsibility at the time of the offenses by military mental health experts and instead, relied on the findings of the RCM 706 board and a civilian forensic psychiatrist.
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United States v. Murray, 52 M.J. 671 (2000)
Taint of IAC from first trial introduced in subsequent requires setting aside second trial. Accused’s first trial was set aside for IAC. He testified in first trial and TC introduced this testimony in second trial, the subject of this appeal.
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United States v. Kirt, 52 M.J. 699 (2000)
No IAC for failing to call certain witnesses on the merits, for failing to examine certain evidence, and for failing to call character witnesses on sentencing where strategy was to avoid impeachment evidence.
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United States v. Ohree, 52 M.J. 742 (2000)
No IAC for failing to introduce evidence where appellant only speculates as to contents of the evidence.
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United States v. Odom, 53 M.J. 526 (2000)
No IAC for failing to move to suppress results of Mexican lineup and for strategic decision not to call witness with questionable credibility.
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United States v. Jackson, 54 M.J. 527 (2000)
It was error for appellant’s lead counsel, who was a civilian, to not be a member in good standing in any bar. He was previously suspended from the practice of law in the two states he was admitted to the bar. However, this was not per se violation of the appellant’s Sixth Amendment right to effective assistance of counsel. This error results in no relief where the appellant has not shown any material prejudice.
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United States v. Passmore, 54 M.J. 515 (2000)
Appellant was denied post-trial effective assistance of counsel, when given a second chance to submit clemency and comment upon a new SJAR, the counsel for the appellant did neither without contacting the appellant.
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- Prosecution Function
- Generally
- Trial Counsel
- Discretion
- Misconduct
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United States v. Cabrera-Frattini, 65 M.J. 950 (2008)
Trial counsel’s comment on the appellant’s failure to testify during closing argument was not plain error where the appellant’s Individual Military Counsel (IMC) did not object and where the military judge sua sponte interrupted the trial counsel, questioned him in front of the members, and secured the trial counsel’s assurance that he was not commenting on the accused’s right to remain silent. The military judge then followed up this questioning by instructing the members that the appellant was under no obligation to testify, and thereafter instructed the members on findings that the appellant is presumed innocent, that the burden of proof never shifts to the appellant and that the appellant has a right to remain silent.
Trial counsel’s not-objected-to reference to the members’ “kids” not being safe on base with the appellant around was error. However, looking at the reference in context, it did not overtly appeal to the emotions of the members in an inflammatory manner, as it was but one line in a six-page argument on sentence, and it appears to have been trial counsel’s attempt to address the impact of the appellant’s misconduct on society and the Marine Corps. The error did not materially prejudice the appellant’s substantial rights and thus plain error is not demonstrated.
Trial counsel’s comment on the appellant’s failure to testify during closing argument and trial counsel’s reference to the members’ “kids” not being safe on base with the appellant around did not rise to the level of prosecutorial misconduct, either individually or cumulatively.
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United States v. Harris, 66 M.J. 781 (2008)
The Court held that the military judge’s findings that no prosecutorial conduct took place were not clearly erroneous where the military judge found that the Government attorney did not coerce a witness into recanting a false affidavit. The defense witness, a friend of the appellant, initially admitted in an affidavit to putting methamphetamine in the appellant’s drink, but later recanted. The Court noted that the Government attorney properly asked whether the witness wanted an attorney present prior to discussing the affidavit, and that the question did not amount to a threat. The Court found that the prosecutor’s forwarding of the affidavit to local law enforcement was proper, and did not amount to a threat, because the affidavit contained admissions of criminal conduct. The Court noted that the Government attorney did not ask local law enforcement to coerce the witness into recanting, and that the local law enforcement officer accurately advised the witness that the affidavit constituted an admission of criminal conduct. Finally, the Court noted that the witness admitted that the appellant offered the witness money to make the false statement.
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United States v. Quintanilla, 60 M.J. 852 (2005), aff’d in part and rev’d in part (on other grounds) 63 M.J. 29 (CAAF 2005)
While prosecutorial misconduct and unethical acts were committed, they did not prejudice the appellant’s trial.
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United States v. Rodriguez-Rivera, 60 M.J. 843 (2005), aff’d in part and rev’d in part (on other grounds) 63 M.J. 372 (CAAF 2006)
Despite Appellant’s assertions, trial counsel did not intentionally violate a sequestration order as the military judge never gave one. Additionally, during the recess the trial counsel only sought to calm the child witness down and urge her to tell the complete truth upon her return to the witness stands.
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United States v. Bruci, 52 M.J. 750 (2000)
UCI / prosecutorial misconduct alleged on appeal from TC allegedly conditioning pretrial agreement on accused waiving his right to litigate speedy trial motion; however, no evidence of such a condition and accused does not have a right to plead guilty. Therefore, no error.
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United State v. Odom, 53 M.J. 526 (2000)
No prosecutorial misconduct by issuing subpoena to Mexican officials in violation of a treaty. Treaty confers no individual rights and prosecutor not engaged in any overreaching.
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United States v. Graham, 54 M.J. 605 (2000)
While the prosecutor’s questions and comment in argument were objectionable, they did not constitute misconduct. Even if they did, we discern no prejudice.
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- Military Judge
- Generally
- Qualifications and Appointment of
- Duties and Responsibilities
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United States v. Walker, 66 M.J. 721 (2008)
Once the military judge reopened the proceedings, he had a duty to offer a full and fair opportunity to both parties to present relevant evidence. During sentencing, when military judge reopened the findings phase of the proceedings and ordered the members to reconsider their verdict, after considering additional evidence, argument and instruction, the military judge erred by refusing to allow the defense to present any evidence.
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United States v. Barnes, 60 M.J. 950 (2005)
While the military judge’s comments before announcement of sentence may have been injudicious; they were not such that taken as a whole in the context of the trial anyone would have doubts about the legality, fairness and impartiality of the proceedings.
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United States v. Lentz, 54 M.J. 818 (2001)
Alleged out-of-court statement by the military judge after sentencing may not be considered in evaluating the correctness of a sentence in law and fact. Only when extraneous prejudicial information was given to the sentencing authority, outside influence was improperly brought to bear on sentencing authority or unlawful command influence infected the proceedings will MRE 606(b) permit consideration of evidence concerning deliberations on the verdict or sentence. There is no actual unfairness or the appearance of unfairness based solely on the length of deliberations.
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- General Powers
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United States v. Sowders, 53 M.J 542 (2000)
MJ questioned accused in a manner intended solely to discredit him before members. Results in set aside of findings.
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- Discretion
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United States v. Walker, 66 M.J. 721 (2008)
The military judge’s denial of retesting of evidence by the defense was clearly improper and an abuse of discretion, but harmless beyond a reasonable doubt because the circumstantial evidence against the appellant was overwhelming, the forensic evidence was not central to the Government’s case and because the appellant’s defense did not rely upon the Government’s forensic evidence.
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United States v. Walker, 66 M.J. 721 (2008)
The military judge abused his discretion by denying a defense request for a continuance to give a substitute expert witness an adequate opportunity to prepare his testimony, where the military judge did not hear argument from either counsel and provided no basis for his ruling.
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- Instructions
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United States v. Walker, 66 M.J. 721 (2008)
The military judge’s failure to provide a spillover instruction did not constitute plain error where trial defense counsel did not object to the military judge’s omission, where the danger of improper spillover was clearly minimized by the undeniable reality of both the quantum and quality of evidence on each separate set of offenses, and where the appellant could not point to any material prejudice.
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United States v. Diaz, 61 M.J. 594 (2005)
The military judge did not abuse his discretion failing to give the defense requested instruction on the Appellant’s character for truthfulness. The military judge correctly noted that the requested instruction is not to be given to assist the members in evaluating the credibility of opposing witnesses, but when character for truthfulness is a defense to the charge, as in false official statement cases. The military judge instead gave instructions that indicated that the members could consider both he testimony regarding the Appellant’s good character for truthfulness and the victim’s poor character for truthfulness when determining the credibility of the witnesses.
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United States v. Forbes, 59 M.J. 934 (2004)
Where a military judge instructs members to disregard the accused’s silence over defense objection, under Mil.R.Evid. 301(g), the military judge must identify case specific “interests of justice” that require the instruction and must articulate an analysis of the balancing of those interests against the defense objection to the instruction. If the military judge does both, the standard of review is abuse of discretion. If the military judge identifies the “interests of justice,” but does not articulate his balancing against the defense objection, the military judge accorded less deference. If the military judge fails to either identify the “interests of justice” or articulate a balancing test, the standard of review is de novo. If it is determined the military judge gave the instruction on the accused’s silence, without articulating case specific interests of justice, over defense objection in error, there will be a presumption of prejudice.
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United States v. Oxendine, 54 M.J. 508 (2000)
The MJ’s instructions on proximate cause and contributory negligence were not erroneous and provided lucid guideposts for the members to follow.
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- Conduct / Misconduct
- Court Members
- Generally
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United States v. Goode, 54 M.J. 836 (2001)
No mistrial where military judge previously instructed members regarding DNA probability evidence, required the government to introduce the more conservative probabilities, told members to disregard the statement that the expert believed the probabilities were higher than the number given, and then did voir dire with the members to see if they could disregard the statement.
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- Challenges for Cause
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United States v. Bagstad, M.J. (2008)
The military judge did not abuse his discretion in denying a challenge for cause to Capt S, who was a reporting senior to a GySgt member. Together the Capt and GySgt comprised 2 of the 3 panel members and were also subordinates of the convening authority. Both the Capt and GySgt made verbal assurances under oath that their duty relationship would not impact their independence as it relates to the issues they must decide as members. There is no implied bias as a reasonable informed public would not believe bias existed within the military justice system as the GySgt was actually senior to the Capt in experience in the Marine Corps, the Capt was only a company grade officer, and the third member was a senior non-commissioned officer with 14 years of experience including multiple combat tours.
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United States v. Cabrera-Frattini, 65 M.J. 950 (2008)
Military judge’s decision not to remove the senior member for cause was not an abuse of discretion where the military judge found out that the senior member knew and briefly spoke to the victim’s stepfather, a drill instructor in the senior member’s battalion. The military judge conducted voir dire of the senior member and found that the encounter would not influence the senior member’s deliberations in any way, and found that there was no actual or implied bias in the relationship between the senior member and the victim’s stepfather.
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United States v. Diaz, 61 M.J. 594 (2005)
The military judge did not err in denying the Appellant’s challenges for cause. No actual or implied bias is raised in the record of trial.
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United States v. Quintanilla, 60 M.J. 852 (2005), aff’d in part and rev’d in part (on other grounds) 63 M.J. 29 (CAAF 2005)
The military judge abused his discretion in granting two Government challenges for cause. The judge found that because of the member’s religious beliefs they would have a tough time considering the entire range of punishments, which included death. That was an inaccurate test to apply as to both members and the military judge erred with regarding to his factual underpinnings as to one of the members. Note that this court set aside the findings and sentence. On appeal to CAAF, our superior court affirmed the error, but disagreed in the relief provided. CAAF noted that the error only had an impact on the sentence and authorized a new hearing on sentence.
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United States v. Evans, 55 M.J. 732 (2001)
The record does not show an actual bias or reasonably suggest implied bias of a member who the trial defense counsel challenged for cause, and the military judge denied the challenge. Therefore, the military judge did not abuse his discretion in denying the challenge.
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- Eligibility / Selection
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United States v. Dowty, 57 M.J. 707 (2002)
The staff judge advocate, in compiling a list of members for the convening authority to choose from, asked for volunteers. Although this is not the preferred method for member selection, the way the judge advocate proceeded indicated that no group of potential members were excluded. In addition, no prejudice can be found where ultimately, only 2 “volunteers” actually served on his member panel.
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- Enlisted Members
- Impeachment of Verdict / Sentence
- Interrogation by Members
- Peremptory Challenges
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United States v. Allen, 59 M.J. 515 (2003)
Trial counsel provided rational non-discriminatory basis for challenge, despite Appellant’s arguments that the challenge was an illegal Batson challenge. Appellant argues that the Government’s interests would have been better served by challenging a different member. We conclude that the military judge was not clearly erroneous.
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- President of Courts-Martial
- Pretrial Publicity
- Generally
- Staff Judge Advocate
- Generally
- Pretrial Advice
- Post-Trial Recommendation View Reference
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United States v. Harris, 66 M.J. 781 (2008)
Court held that Staff Judge Advocate’s failure to comment on trial defense counsel’s vague clemency request that alluded to, but did not specifically allege, prosecutorial misconduct did not require a new Staff Judge Advocate’s Recommendation.
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United States v. Blackett II, 62 M.J. 625 (2006)
Court held that Staff Judge Advocate’s failure to comment on trial defense counsel’s vague clemency request that alluded to, but did not specifically allege, prosecutorial misconduct did not require a new Staff Judge Advocate’s Recommendation.
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United States v. Gatlin, 60 M.J. 804 (2004)
Where a Staff Judge Advocate’s Recommendation (SJAR) is prepared by a person who is not the staff judge advocate or legal officer for the convening authority and there is no explanation why such a person prepared the SJAR there is error. However, appellant must make some colorable showing of prejudice to be granted relief.
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United States v. Bell, 60 M.J. 682 (2004)
SJA cannot “pocket veto” a clemency request for early release from confinement by delaying forwarding it until the convening authority’s action is ready to be taken.
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- Qualifications / Disqualifications View Reference
- Responsibilities View Reference
- Convening Authority
- Generally
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United States v. Jones, 60 M.J. 917 (2005)
The military judge erred in dismissing the charges for improper referral. The appellant no longer worked within the chain of command of the GCMCA where the offenses occurred. The new GCMCA did not want to pursue court-martial charges. The trial was convened by the original GCMCA. The new GCMCA did indicate that he would make Appellant available if the old GCMCA did convene charges. The old GCMCA was a proper CA.
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United States v. Hundley, 56 M.J. 858 (2002)
There is no need to resort to a functional analysis of a unit if it is a titled battalion, designated as such under the Total Force Structure process. If so, it has the authority to convene a special-court-martial. Here, the HQ and Support Battalion of the School of Infantry is empowered to convene special courts-martial.
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- Referral View Reference
- Immunity, Grants of View Reference
- Clemency View Reference
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United States v. Harris, 66 M.J. 781 (2008)
Court held that the appellant’s claim that the Convening Authority (CA) failed to consider appellant’s clemency was without merit where the CA’s action states that the CA considered the record of trial and the clemency matters submitted by the accused, and where the appellant’s allegations of Government misconduct were fully litigated and twice denied by two different military judges.
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United States v. Doughman, 57 M.J. 653 (2002)
By failing to submit clemency matters within 10 days of receipt of the staff judge advocate’s recommendation, the appellant waived the right to submit matters. Assuming that an extension to submit matters was approved, but not recorded in the record, the failure of the convening authority to mention that he considered a clemency petition that predated his action, does not give rise to relief. There is no requirement that the convening authority note that he considered the submission, and a presumption of regularity applies.
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- Action View Reference
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United States v. Robbins, 60 M.J. 607 (2004)
Where the convening authority’s action is ambiguous as to whether the sentence or a portion of the sentence was approved, we may review all relevant matters, including affidavits from the convening authority to determine what sentence or portion of the sentence was approved. CAAF rejected this approach and remanded the case for a corrected convening authority’s action, holding that to be the correct method for correcting ambiguous convening authority’s actions. United States v. Robbins, 61 M.J. 60 (CAAF 2005).
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United States v. Brown, 57 M.J. 623 (2002)
It was error for a different SPCMCA, than the SPCMCA that convened the appellant’s court, to take the action in his case, without any explanation why the original SPCMCA could not take the action. We will not test for prejudice, rather, we set aside the action and return the record to the Judge Advocate General for further post-trial processing.
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United States v. Glover, 57 M.J. 696 (2002)
A supplemental promulgating order must be prepared to correct identify the appellant’s convictions. The current order merely reflects the UCMJ Article number of the offense, without a verbatim or summarized account of the charge. RCM 1114 requires the verbatim or summarized offense be listed in the order.
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- Disqualification View Reference
- Generally
- Defense Function
- Core Criminal Law Subjects
- Crimes
- Article 77 – Principals
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United States v. Caudill, 65 M.J. 756 (2007)
Appellant’s pleas to introduction of methamphetamines with the intent to distribute and obstructing justice, based upon aider and abettor liability, were improvident when the military judge did not clearly explain the relevant elements and definitions of each offense prior to accepting her guilty pleas. The Court held a plea of guilty to any offense premised on an Article 77 theory of liability is sufficiently complex to require that the military judge clearly explain the relevant elements and definitions prior to accepting a guilty plea.
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- Article 78 – Accessory After the Fact
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United States v. Harris, 53 M.J. 514 (2000)
Solicitation to become an accessory after the fact does in fact state an offense even though subject of the solicitation is an inchoate crime.
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- Article 79 – Conviction of Lesser Included Offenses
- Article 80 – Attempts
- Article 81 – Conspiracy
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United States v. Bart, 61 M.J. 578 (2005)
Overt acts that occur prior to the conspiratorial agreement cannot be alleged as overt acts within the specification.
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United States v. Johnson, 58 M.J. 809 (2003)
Appellant may properly be convicted of conspiracy to use drugs and the underlying use of the drugs. In each specification of conspiracy to use, more than one person is part of the conspiracy to use, and use is a crime that requires only one actor, therefore Wharton’s Rule is not violated. Additionally, each use specification includes use with a party that was not part of the corresponding conspiracy to use specification. In each instance, the appellant and another agreed to use the drug, but when they ultimately used the drug, and third party was present.
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- Article 82 – Solicitation
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United States v. Harris, 53 M.J. 514 (2000)
Solicitation to become an accessory after the fact does in fact state an offense even though subject of the solicitation is an inchoate crime.
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- Article 83 – Fraudulent Enlistment, Appointment, or Separation
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United States v. Farano, 60 M.J. 932 (2005)
Appellant’s conviction for fraudulent enlistment is sufficient despite language in specification that alleges that he made his false statement of fact before he was on active duty. The gravaman of the offense is the fraudulent receipt of pay not the misrepresentation of a material fact. The pay was received while on active duty and no unlawful variance exists in the specification.
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- Article 84 – Effecting Unlawful Enlistment, Appointment, or Separation
- Article 85 – Desertion
- Article 86 – Absence Without Leave
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United States v. Adams, 60 M.J. 912 (2005)
Appellant’s plea of guilt for failure to go to his appointed place of duty is provident despite Appellant’s answers that he did not know the exact place of duty. Appellant freely admitted that he could have easily found out where the unit muster was that morning but chose to remain ignorant of the fact and stay in his barracks room. Knowledge may be inferred under the deliberate ignorance or avoidance doctrine.
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United States v. Pinero, 58 M.J. 501 (2003)
The appellant admitted that he had been within control of the military authorities for about 5 hours in the middle of an unauthorized absence period which began on 23 October and was terminated by apprehension on 15 December of the same year. Appellant indicated that he was required to go to the base clinic, sometime in November, and hence, on appeal, he claims that portion of his guilty plea is improvident. The 5-hour period was de minimis and the appellant waived this defense by pleading guilty.
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United States v. Bush, 57 M.J. 603 (2002)
Appellant’s plea to unauthorized absence terminated by apprehension was provident even though the appellant went to a local recruiting office and notified the recruiting personnel of his status. He did this so that they could inform his ship. The recruiting personnel advised him to drive to a nearby base to surrender, but he failed to follow such advice. He was later apprehended. Surrender would have occurred had the appellant submitted to the orders requiring him to drive to a nearby base.
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United States v. Cary, 57 M.J. 655 (2002)
Appellant’s plea of guilty to being UA from his ship, which was located in Mayport, Fla. was not provident where the underlying act was missing a telephone muster with personnel from the Personnel Support Detachment, in Tampa Fla.. UA covers offenses where the member is not in the place they are supposed to be, not whether they complied with a direction.
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- Article 87 – Missing Movement
- Article 88 – Contempt Toward Officials
- Article 89 – Disrespect Toward a Superior Commissioned Officer
- Article 90 – Assaulting or Willfully Disobeying Superior Commissioned Officer
- Article 91 – Insubordinate Conduct Toward Warrant Officer, Noncommissioned Officer, or Petty Officer
- Article 92 – Failure to Obey Order or Regulation
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United States v. Caudill, 65 M.J. 756 (2007)
Appellant’s pleas to introduction of methamphetamines with the intent to distribute and obstructing justice, based upon aider and abettor liability, were improvident when the military judge did not clearly explain the relevant elements and definitions of each offense prior to accepting her guilty pleas. The Court held a plea of guilty to any offense premised on an Article 77 theory of liability is sufficiently complex to require that the military judge clearly explain the relevant elements and definitions prior to accepting a guilty plea.
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However, the Court held the military judge did not abuse his discretion by accepting appellant’s guilty pleas to use and distribution of methamphetamine, orders violations, and communicating a threat when the judge failed to explain the elements, relevant definitions, and terms of the offenses during the providence inquiry and relied solely on the stipulation of fact and appellant’s agreement that defense counsel had properly explained the elements, definitions, and potential defenses for all of the offenses. The Court’s reasoning was that these are simple offenses and are commonly known to service members.
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United States v. Jackson, 61 M.J. 731 (2005)
Article 1165, (fraternization) US Navy Regs is a punitive article; however, Appellant’s guilty pleas are improvident where no prohibited relationship was shown.
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United States v. Schwartz, 61 M.J. 567 (2005)
An order to receive the anthrax vaccine is a lawful order as it relates to a valid governmental interest. It is not a violation of the Appellant’s Constitutional right to refuse medical treatment.
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United States v. Cochrane, 60 M.J. 632 (2004)
Secretary of the Navy Instruction 5300.2C (24 Mar 1999) prohibits the “unlawful use by persons in the [Department of the Navy] of controlled substance analogues (designer drugs), natural substances (e.g., fungi, excretions), chemicals (e.g., chemicals wrongfully used as inhalants), propellants, and/or a prescribed or over-the-counter drug or pharmaceutical compound, with the intent to induce intoxication or excitement, or stupefaction of the central nervous system.” It is not unconstitutionally vague and may properly be applied to prosecute an accused for mixing, heating and ingesting a combination of cough syrup, ammonia, lighter fluid and lemon juice with the intent to induce intoxication, excitement and stupefaction of the nervous system.
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United States v. Orton, 56 M.J. 750 (2002)
Guilty plea for violating an order would not be reversed under the facts of this case. The superior’s question, “So are you ready to go to the field?” was a specific mandate to support a conviction for violating an order. The appellant plead guilty to violation of an order and repeatedly told the military judge that the superiors “question” was an implicit order to go to the field, and he understood it as such.
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United States v. Mease, 57 M.J. 686 (2002)
Appellant plead guilty to violating an order that proscribed members from driving on the installation with a suspended license. Appellant claims that his ignorance, not of the order in question, but the underlying fact, that the state he was licensed to drive in, had suspended his license. Because we read no scienter element into this offense, to prevail on a mistake of fact defense to a general intent crime, the appellant must affirmatively raise the defense of mistake of fact, and his mistake must be honest and reasonable. Based upon the facts of the case, his mistake of fact was not reasonable, additionally; the military judge extensive questioning on the appellant’s knowledge of the status of his license was adequate.
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United States v. Hudgens, 54 M.J. 932 (2001)
Appellant’s plea to violating an order (base traffic instruction) was accepted by the military judge in error. In this case the order in question (base traffic instruction) merely indicated that appellant should comply with law of state in which base was located. The record, however, fails to show sufficient proof of the offense of violating the state law. Without deciding if the appellant could violate an order (Art 92) in this manner, as a matter of law, we find it should have been charged under Article 134 (3), through the Federal Assimilated Crimes Act.
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United States v. Bruci, 52 M.J. 750 (2000)
Orders violation legally sufficient (discussion of proof of “actual knowledge”).
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United States v. Jackson, 54 M.J. 527 (2000)
Evidence was sufficient to convict appellant for rape, adultery, and fraternization (orders violation). Even though the affair that the victim consented to was secret the acts were prejudicial to good order and discipline. Violation of Fraternization order was legally sufficient even though appellant had no direct supervisory position over the victim.
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United States v. Lugo, 54 M.J. 558 (2000)
The Marine Corps Order that prohibits male Marines from wearing earrings reasonably relates to military duties and is lawful.
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- Article 93 – Cruelty and Maltreatment
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United States v. Goddard, 54 M.J. 763 (2000)
Consensual sexual relationship between senior and subordinate, without more, will not be sufficient to sustain conviction for maltreatment. It is sufficient, under these facts, to affirm the LIO of a simple disorder.
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- Article 94 – Mutiny and Sedition
- Article 95 – Resistance, Flight, Breach of Arrest, and Escape
- Article 96 – Releasing Prisoner without Proper Authority
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United States v. Lillyblad, 56 M.J. 636 (2001)
Plea of guilty to, to Article 96, UCMJ, releasing a prisoner without proper authority, is provident even though the prisoner was not formally confined pursuant to RCM 305. The term “prisoner,” for this Article, encompasses both those lawfully in confinement and those in a custody status.
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- Article 97 – Unlawful Detention
- Article 98 – Noncompliance with Procedural Rules
- Article 99 – Misbehavior Before the Enemy
- Article 100 – Subordinate Compelling Surrender
- Article 101 – Improper Use of Countersign
- Article 102 – Forcing a Safeguard
- Article 103 – Captured or Abandoned Property
- Article 104 – Aiding the Enemy
- Article 105 – Misconduct as a Prisoner
- Article 106 – Spies
- Article 106a – Espionage
- Article 107 – False Official Statements
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United States v. Morgan, 65 M.J. 616 (2007)
Statements made by appellant to civilian authorities during a murder investigation were not “official” within the meaning of Art. 107 where the circumstances leading up to and surrounding appellant’s statements did not bear a clear and direct relationship to his military duties and did not reflect a substantial military interest in the civilian police investigation.
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United States v. Holmes, 65 M.J. 684 (2007)
Appellant’s pleas to two specifications of making a false official statement were improvident where there was no evidence that the statements were “official” as required by Art. 107, UCMJ. The deciding factor for determining the official nature of the false statement was whether a nexus existed between the basis for the questioning and the appellant’s military duties and status.
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United States v. Orellana, 62 M.J. 595 (2005)
There is no “exculpatory no” doctrine for factually false statements to investigators, which are immediately corrected when Appellant was confronted with a taped conversation that proved he just lied. Despite appellant’s argument that his chain of command was never aware he initially lied to NCIS was a defense, we discern no such defense to this offense.
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United States v. Melbourne, 58 M.J. 682 (2003)
Appellant’s plea of guilt to making a false official statement was provident even though it was made to a criminal investigator.
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United States v. Oxendine, 54 M.J. 508 (2000)
Evidence was factually and legally sufficient to sustain a conviction for false official statement, even though the appellant’s statement that victim was by the window and was later gone, was technically a true statement, where the facts indicate the intent to deceive was by omission.
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- Article 108 – Military Property of the United States – Sale, Loss, Damage, Destruction, or Wrongful Disposition
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United States v. Stotler, 55 M.J. 610 (2001)
Even though specification alleging wrongful sale of military property, left out the essential element, that the sale was “without proper authority,” the appellant’s plea is still provident where the missing element can be found by a reasonable construction of the specification, and the specification excludes all hypotheses of innocence.
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- Article 109 – Property Other Than Military Property of the United States – Waste, Spoilage, or Destruction
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United States v. White, 61 M.J. 521 (2005)
The evidence presented by the Government did not prove the willful damage of Government property, in that the damage flowing from his acts was almost certain or that it was highly foreseeable, beyond a reasonable doubt.
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- Article 110 – Improper Hazarding of Vessel
- Article 111 – Drunken or Reckless Operation of Vehicle, Aircraft, or Vessel
- Article 112 – Drunk on Duty
- Article 112a – Wrongful Use, Possession, etc., of Controlled Substances
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United States v. Caudill, 65 M.J. 756 (2007)
Appellant’s pleas to introduction of methamphetamines with the intent to distribute and obstructing justice, based upon aider and abettor liability, were improvident when the military judge did not clearly explain the relevant elements and definitions of each offense prior to accepting her guilty pleas. The Court held a plea of guilty to any offense premised on an Article 77 theory of liability is sufficiently complex to require that the military judge clearly explain the relevant elements and definitions prior to accepting a guilty plea.
However, the Court held the military judge did not abuse his discretion by accepting appellant’s guilty pleas to use and distribution of methamphetamine, orders violations, and communicating a threat when the judge failed to explain the elements, relevant definitions, and terms of the offenses during the providence inquiry and relied solely on the stipulation of fact and appellant’s agreement that defense counsel had properly explained the elements, definitions, and potential defenses for all of the offenses. The Court’s reasoning was that these are simple offenses and are commonly known to service members.
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United States v. Tingler, 65 M.J. 545 (2006)
Two defendants who jointly acquire possession of drugs can be convicted of distribution where the distribution occurred only between those two defendants.
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United States v. Hildebrandt, 60 M.J. 642 (2004)
Scientific evidence from a properly conducted urinalysis is legally and factually sufficient evidence to support a guilty finding to a violation of Article 112a of the UCMJ, even in light of sworn testimony from the appellant that he did not knowingly use cocaine. The permissive inference does not violate appellant’s due process rights under the Fifth Amendment.
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United States v. Barlow, 58 M.J. 563 (2003)
Appellant’s convictions for multiple drug offenses are sufficient despite his assertion that he was convicted solely on the basis of self-contradictory, improbable, and uncertain testimony of accomplices. As an initial matter, that pre-1984 Manual provision was deleted from the main body of the Manual for Courts-Martial. It subsequently was placed in the non-binding discussion section of the Manual. Even if the Government was held to the more onerous pre-1984 Manual standard, the appellant’s convictions were still sufficient because: 1) the military judge provided the members with instructions consistent with the pre-1984 Manual, which required corroboration; and 2) the 2 accomplice’s testimony is not self-contradictory, uncertain, or improbable.
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United States v. Camacho, 58 M.J. 624 (2003)
Appellant’s conviction for possession drug paraphernalia is factually insufficient. The torch and wire clips found in her vehicle had no residue on them. No drugs were found at the time of the seizure of the paraphernalia. She offered a reasonable innocent explanation for the possession of these items at the time of her arrest.
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United States v. Manley, 52 M.J. 748 (2000)
Pleas to distribution of cocaine to individuals who jointly purchased cocaine with appellant does not render pleas improvident where there is no indication of joint possession prior to the distribution.
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- Article 113 – Misbehavior of Sentinel or Lookout
- Article 114 – Dueling
- Article 115 – Malingering
- Article 116 – Riot or Breach of Peace
- Article 117 – Provoking Speeches or Gestures
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United States v. Ybarra, 57 M.J. 807 (2002)
Appellant may properly be convicted of using provoking words, even when those words were said while the appellant was under restraint and directed toward the official who was directing the restraint of the appellant.
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- Article 118 – Murder
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United States v. Quintanilla, 60 M.J. 852 (2005), aff’d in part and rev’d in part (on other grounds) 63 M.J. 29 (CAAF 2005)
The evidence was legally and factually sufficient to sustain the convictions of attempted premeditated murder, order violation, premeditated murder, and aggravated assault.
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United States v. Thomas, 56 M.J. 523 (2001)
Plea was provident to premeditated murder when the appellant was acting under the delusion that the police were surrounding him and his son, so he killed his son. The law does not allow the provocation by a third party to reduce murder to manslaughter when one strikes out and kills and innocent bystander, then knowing them to be such.
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- Article 119 – Manslaughter
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United States v. Markert, 65 M.J. 677 (2007)
The Court found appellant’s plea of guilty to involuntary manslaughter provident where appellant’s act of negligently shooting his friend in the head was a substantial contributing factor, which proximately caused the victim’s death, irrespective of the family’s decision to discontinue life support. Removal of the victim from a respirator prior to brain death does not relieve an accused of criminal responsibility if the decision by the physician, or by the victim’s legal representative, “was no more than simple negligence”.
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United States v. Oxendine, 54 M.J. 508 (2000)
Evidence was sufficient to support conviction for involuntary manslaughter, even though the victim’s acts were contributory negligent, because the victim’s acts did not supersede the appellant culpable negligence.
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- Article 119a – Death or Injury of an Unborn Child
- Article 120 – Sex Offenses
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United States v. Neal, 67 M.J. 675 (2009)
This case arrived at NMCCA as the result of a Government “interlocutory” appeal per Article 62. The appellee was charged with one specification of aggravated sexual assault, a violation of Article 120(e). Upon motion of the appellee the MJ dismissed the charge and sole specification, holding that the appellee – who testified – “raised the affirmative defense of consent,” the defense was “element based,” and the “the statute's reference to force logically required the government to prove lack of consent.” Upon dismissing the charge, the MJ dismissed the members and adjourned the CM. The Government provided notice of intent to appeal the next day and docketed within 20 days.
NMCCA held that force and consent are distinct terms, that are not inextricably intertwined as alleged by the appellee. “The definition of force focuses upon the conduct of the accused, while the definition of consent focuses upon the words, acts and competence of the putative victim.” The court allows for the possibility that force and consent could exist in the same case, without necessarily requiring the defense to raise an affirmative defense. Ultimately, the court held that lack of consent need not be proven by the Government. As to the second issue, NMCCA held that assignment of the burden of proving the affirmative defense of consent to the accused is constitutionally permissible, because the burden of proof as to proving force – which is an actual element – remains with the Government.
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United States v. Crotchett, 67 M.J. 713 (2009)
Art. 62 Appeal. Appellant was accused of aggravated sexual assault in violation of Article 120(c), after allegedly engaging in sexual intercourse with a woman who was asleep when the assault began. During pre-trial motions, Crotchett served written notice that he intended to assert the affirmative defense of consent. The MJ held that Article 120(c), “unconstitutionally shifted the burden of proof to the accused to disprove an essential element of the offense.” The MJ dismissed the case before the introduction of any evidence at trial. NMCCA ruled that an “as applied” review was premature due to the limited record. The court ultimately granted the Government’s appeal, acknowledging the disfavor with which facial challenges are generally viewed
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United States v. Jenkins, 62 M.J. 582 (2005)
Appellant’s plea to rape and forcible sodomy is provident despite his appellate claim that no force was present. Appellant attempts to claim no actual physical force was used, but the record suggest much constructive force which is sufficient.
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United States v. Roberts, 55 M.J. 724 (2001)
Although the victim couldn’t testify for certain that the accused’s penis entered her vagina (as opposed to some other object), based upon her testimony that she believed it to be the appellant’s penis, and based upon other evidence, the evidence is factually and legally sufficient to support the appellant’s rape conviction.
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United States v. Green, 52 M.J. 803 (2000)
Legal sufficiency of oral sodomy offense (discussion of element of penetration).
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- Article 120a – Stalking
- Article 121 – Larceny and Wrongful Appropriation
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United States v. Lundgren, 59 M.J. 597 (2003)
Appellant’s plea was provident to the amount of the ATM larceny including the amount of the bank surcharge, money the Appellant never received. Larceny involves the wrongful appropriation of another’s property for the accused’s own use or any person other than the owner. The Appellant’s actions of punching in the victim’s pin number and receiving money and transferring the service charge to a third bank were the equivalent to reaching into the victim’s pockets.
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- Article 122 – Robbery
- Article 123 – Forgery
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United States v. Nimmons, 59 M.J. 550 (2003)
Appellant’s guilty plea to forgery is improvident where no writing was ever used. Appellant provided stolen calling card information to operator, so while his other crimes involving larceny are provident, there is no forgery.
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- Article 123a – Making, Drawing, or Uttering Check, Draft, or Order without Sufficient Funds
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United States v. Falcon, 65 M.J. 562 (2006)
The “gambler’s defense” is not applicable to Art. 123a. The MJ didn’t abuse his discretion by failing to inform the appellant of the gambler’s defense during providency because Art. 123a., unlike Art. 134, making and uttering worthless checks, doesn’t contain the element of dishonor. The gambler’s defense exists where the payee tolerates an accused’s habit of writing worthless checks, not when the accused intended to defraud the payee when issuing the check.
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- Article 124 – Maiming
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United States v. Allen, 59 M.J. 515 (2003)
Evidence was legally and factually sufficient to support Appellant’s convictions for maiming and aggravated assault in the injuries to his 3-month old son based by forceful shaking.
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- Article 125 – Sodomy
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United States v. Christian, 61 M.J. 560 (2005)
Appellant’s convictions for sodomy are constitutional. Additional factors present, unique to a military environment are present that support the constitutionality of the conviction. These include that the acts were conducted, in part, in a government office, the female was a friend of a delayed entry program enlistee, the female allegedly assisted at the recruiting station tutoring others taking the advancement exam, the relationship violated the recruit command policies, and violated the Appellant’s marital obligations to his spouse, a lawful military dependant.
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United States v. Bart, 61 M.J. 578 (2005)
Appellant’s convictions for sodomy are constitutional. Additional factors present, unique to a military environment are present that support the constitutionality of the conviction. Appellant’s acts were with another military member who was married and lived on base quarters. The other military members created a weekly false duty to tell his wife so he could meet Appellant. Appellant gave other member a deadline in which to divorce his spouse and after extending the deadline numerous times, the other member murdered his wife.
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- Article 126 – Arson
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United States v. Clark, 61 M.J. 707 (2005)
Evidence is factually insufficient to support conviction for aggravated arson. Government failed to prove beyond a reasonable doubt that Appellant knew there were people inside the structure.
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United States v. Smith, 60 M.J. 985 (2004)
The temporary absence of personnel using a specific berthing compartment on board a ship at the time of a fire does not render the space an “uninhabited dwelling.”
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- Article 127 – Extortion
- Article 128 – Assault
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United States v. Jackson, 61 M.J. 731 (2005)
Appellant’s plea to assault by to touching victim’s breast and masturbating in front of her was improvident to the masturbation portion as the record fails to disclose a factual or legal basis to support how his masturbation constituted assault.
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United States v. Allen, 59 M.J. 515 (2003)
Evidence was legally and factually sufficient to support Appellant’s convictions for maiming and aggravated assault in the injuries to his 3-month old son based by forceful shaking.
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- Article 129 – Burglary
- Article 130 – Housebreaking
- Article 131 – Perjury
- Article 132 – Frauds Against the United States
- Article 133 – Conduct Unbecoming an Officer and Gentleman
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United States v. Morrison, 66 M.J. 508 (2008)
Court convinced that a rational fact finder could have found appellant guilty of conduct unbecoming an officer and gentleman where victim put her hands around her waist to prevent appellant from removing her pants, put her hands between her legs to prevent appellant from having sex with her, repeatedly said “no” and “I can’t” during initial sexual encounter, and then immediately reported the appellant’s conduct the following morning and went to the medical clinic to have a “rape kit” done.
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United States v. Mazer, 62 M.J. 571 (2005)
The Appellant’s conviction for conduct unbecoming an officer is provident despite the Supreme Court’s ruling in Ashcroft v. Free Speech Coalition in regards to child pornography. Appellant was not convicted of the contested Child Pornography Protection Act, but conduct unbecoming for his acts involving child pornography. As such the CPPA need not be constitutionally valid for his offense to be legally sufficient.
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- Article 134 – General Article
-
United States v. Purdy, __ M.J. __ (2009)
Appellant pled guilty at SPCM to making a false official statement and receiving and possessing kiddie porn. Appellant argues that the receipt and possession charges were multiplicious and that his plea to the kiddie porn charge was improvident per United States v. Medina. NMCCA affirmed the conviction. NMCCA held that Art. 134 clause 1 and 2 were not LIOs of clause 3 crimes, which led to reversal in Medina. Here, the court affirmed the conviction, confident that the appellant had been on notice that he was pleading guilty to crimes under clause 1 and 2.
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United States v. Craig, __ M.J. __ (2009)
Appellant pled guilty to one spec each of receipt, possession and distribution of kiddie porn. He was sentenced to 18 months and a BCD. The main issue in this case was whether there was sufficient evidence to uphold the distribution conviction, when the appellant merely kept the files in his peer-to-peer share file program on his personal computer. In his stip of fact, he knew that others could get at the images, but was not sure if anyone actually had retrieved his images. The appellant was charged under 18 USC 2252A, which does not include a “distribution” definition. The MJ applied the “distribution” definition set forth in Article 112a - “Distribute means to deliver to the possession of another.” NMCCA agreed that this definition applied when there was evidence that someone had actually downloaded the pictures, but noted that there was no such evidence in this case. Consequently, the court held that there was no evidence of distribution here. The court did note that the downloading would have been admissible in aggravation, opting to affirm the sentence.
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United States v. Garner, 67 M.J. 734 (2009)
Appellant pled guilty to attempting to communicate indecent language to a child under the age of 16 and of violating 18 USC 2422(b) by attempting to persuade, entice and induce a minor to engage in intercourse and oral sodomy. He was sentenced to 12 months and a DD. Appellant claimed that his plea to the enticement charge was improvident because he failed to take a substantial step. Along those lines, the court specified an issue considering whether words were enough to satisfy the “substantial step” element of enticement if those words amount to “grooming.” Appellant was discovered as he chatted away online with “Molly,” whom he believed to be 14 years old. “Molly” was actually an adult police officer. They never actually set up a meeting, but he did offer more than once to show up at her house and “nock” on her door, knowing where she lived. During providency, the MJ correctly identified the need for a “substantial step” which all parties agreed was satisfied by his repeated attempts to convince “Molly” to engage in intercourse and sodomy. In a case of first impression, NMCCA held that the grooming techniques employed by the appellant were enough. The court declined to follow the more narrow view employed by the Seventh Circuit that a “substantial step” requires some “direct physical movement in furtherance of engaging in sexual activity or concrete specific steps towards that end.” The court outlined a series of facts, which, taken together, constituted a “substantial step.”
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United States v. Tenney, 60 M.J. 838 (2005)
The preemption doctrine does not bar the Appellant’s prosecution for federal bank fraud even though the military has attempted larceny and fraud against the United States offenses. Appellant’s conduct does not violate Article 132 and there is no indication that Congress intended to occupy the field of all attempted larcenies such that an accused could not be convicted of the federal bank fraud offenses.
-
- Article 134 – Abusing Public Animal
- Article 134 – Adultery
-
United States v. Orellana, 62 M.J. 595 (2005)
Despite Lawrence v. Texas a service member may be lawfully convicted for adulterous activity with a consenting adult. The terminal 134 element was present in this case in multiple forms and that is the basis for the government’s legitimate interest in prosecuting such behavior.
-
- Article 134 – Assault, Indecent
-
United States v. Morrison, 66 M.J. 508 (2008)
Court convinced that a rational fact finder could have found appellant guilty indecent assault where victim put her hands around her waist to prevent appellant from removing her pants, put her hands between her legs to prevent appellant from having sex with her, repeatedly said “no” and “I can’t” during initial sexual encounter, and then immediately reported the appellant’s conduct the following morning and went to the medical clinic to have a “rape kit” done.
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United States v. Gaines, 61 M.J. 689 (2005)
The Government failed to disprove the defense raised beyond a reasonable doubt. In this case the Appellant in a darkened bedroom that was previously occupied by his girlfriend believed he was touching his girlfriend. We believe he had an honest and reasonable mistake of fact as to consent for indecent assault.
-
- Article 134 – Assault, with Intent to Commit Murder, Voluntary Manslaughter, Rape, Robbery, Sodomy, Arson, Burglary, or Housebreaking
-
United States v. Clark, 61 M.J. 707 (2005)
Evidence is factually sufficient to support assault with intent to commit arson offense where the Appellant committed a battery-type assault through gross negligence by setting fire to a structure while withstanders, unbeknownst to the offenders, were inside.
-
United States v. Odom, 53 M.J. 526 (2000)
Legal sufficiency of assault with the intent to commit murder (discussion of the specific intent element).
-
- Article 134 – Bigamy
- Article 134 – Bribery and Graft
- Article 134 – Burning with Intent to Defraud
- Article 134 – Check, Worthless, Making and Uttering — by Dishonorably Failing to Maintain Funds
-
United States v. Lockwood, 63 M.J. 602 (2006)
The appellant providently plead guilty to dishonorably failing to maintain sufficient funds under Art. 134. The appellant purchased a vehicle with a check, knowing he possessed insufficient funds in his account, later placed a stop payment on the check, and surreptitiously returned the vehicle to the car dealer after driving it for two additional days. The stop payment action by the appellant did not negate the “dishonorable” element of the offense because he had no legal justification for issuing the stop payment, and had no ability to obtain sufficient funds to honor the check.
-
- Article 134 – Cohabitation, Wrongful
- Article 134 – Correctional Custody – Offenses Against
- Article 134 – Debt, Dishonorably Failing to Pay
- Article 134 – Disloyal Statements
- Article 134 – Disorderly Conduct, Drunkenness
- Article 134 – Drinking Liquor with Prisoner
- Article 134 – Drunk Prisoner
- Article 134 – Drunkenness - Incapacitation for Performance of Duties Through Prior Wrongful Indulgence in Intoxicating Liquor or any Drug
-
United States v. Bewsey, 54 M.J. 893 (2001)
Appellant was properly convicted of incapacitation for duty, pursuant to Article 134, UCMJ vice failure to go pursuant to Article 86, UCMJ. Preemption doctrine only applies where it is shown that Congress intended that a punitive Article specifically cover a class of offenses in a complete way.
-
- Article 134 – False or Unauthorized Pass Offenses
- Article 134 – False Pretenses, Obtaining Services Under
- Article 134 – False Swearing
-
United States v. Daniels, 57 M.J. 560 (2002)
A military member may properly be convicted of false swearing, when he takes an oath and swears falsely to a civilian police officer.
-
- Article 134 – Firearm, Discharging – Through Negligence
- Article 134 – Firearm, Discharging – Willfully under such Circumstances as to Endanger Human Life
- Article 134 – Fleeing Scene of Accident
-
United States v. Quinn-monreal, 65 M.J. 736 (2006)
The appellant providently pled guilty to fleeing the scene of an accident. The explanation of this offense in the MCM indicates damage or injury to someone, or something, other than the accused, is required. No damage occurred to any person or property, other than the vehicle driven by the appellant, but the plea was provident because the appellant damaged a stolen vehicle.
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United States v. Littleton, 60 M.J. 753 (2004)
Injury to a person other than the driver or a passenger in the driver’s vehicle, or damage to some property other than the driver’s vehicle is necessary to support a finding of guilty to Fleeing the Scene of an Accident.
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- Article 134 – Fraternization
- Article 134 – Gambling with Subordinate
- Article 134 – Homicide, Negligent
- Article 134 – Impersonating a Commissioned, Warrant, Noncommissioned, or Petty Officer, or an Agent or Official
- Article 134 – Indecent Acts or Liberties with a Child
- Article 134 – Indecent Exposure
-
United States v. Graham, 54 M.J. 605 (2000)
Conviction is legally sufficient for indecent exposure even though exposure took place in the appellant’s own home. Public view occurs when the exposure is done in a place and manner that is reasonably expected to be viewed by another.
-
- Article 134 – Indecent Language
- Article 134 – Indecent Acts with Another
-
United States v. Johnson, 60 M.J. 988 (2005)
Appellant’s plea of guilt to indecent acts with another is provident even though Appellant did not directly participate in the sexual act. Appellant entered hotel room where his buddy was having sex with foreign national. Appellant watched them having sex and said “that’s my dog.” His buddy responded with “I’m handling my business.” Court noted that the common meaning of his language was to encourage or praise his buddy while observing the sexual display.
-
- Article 134 – Jumping from Vessel into the Water
- Article 134 – Kidnapping
- Article 134 – Mail – Taking, Opening, Secreting, Destroying, or Stealing
- Article 134 – Mails – Depositing or Causing to be Deposited Obscene Matters in
- Article 134 – Misprision of Serious Offense
- Article 134 – Obstructing Justice
-
United States v. Culbertson, 65 M.J. 587 (2007)
A Naval officer’s request that a junior subordinate use her influence to “silence” the victim of an alleged rape, where a formal investigation had not yet been opened, was held to be wrongful conduct sufficient to satisfy the elements of obstruction of justice. To satisfy the element of wrongful conduct in an obstruction of justice charge, there is no requirement for any formal, official investigation to be in progress at the time of the wrongful act.
-
- Article 134 – Wrongful Interference with an Adverse Administrative Proceeding
- Article 134 – Pandering and Prostitution
- Article 134 – Parole, Violation of
- Article 134 – Perjury – Subornation of
- Article 134 – Public Record, Altering, Concealing, Removing, Mutilating, Obliterating, or Destroying
- Article 134 – Quarantine: Medical, Breaking
- Article 134 – Reckless Endangerment
- Article 134 – Requesting Commission of an Offense
- Article 134 – Restriction, Breaking
- Article 134 – Seizure: Destruction, Removal, or Disposal of Property to Prevent
- Article 134 – Self-injury without Intent to Avoid Service
- Article 134 – Sentinel or Lookout – Offenses Against or By
- Article 134 – Soliciting Another to Commit an Offense
- Article 134 – Stolen Property: Knowingly Receiving, Buying, Concealing
- Article 134 – Straggling
- Article 134 – Testify: Wrongful Refusal
- Article 134 – Threat or Hoax – Bomb
- Article 134 – Threat, Communicating
-
United States v. Wright, 65 M.J. 703 (2007)
Appellant’s plea to communicating a threat was deemed improvident when appellant sought help from a mental health professional and, during an appointment with a doctor, discussed potentially harming members of his unit if provoked. The Court held threatening statements uttered to medical personnel, which express the declarant’s current mental state or distress, and which are uttered for the purpose of obtaining medical evaluation and treatment are not wrongful and do not constitute communicating a threat under Article 134, UCMJ.
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United States v. Caudill, 65 M.J. 756 (2007)
Appellant’s pleas to introduction of methamphetamines with the intent to distribute and obstructing justice, based upon aider and abettor liability, were improvident when the military judge did not clearly explain the relevant elements and definitions of each offense prior to accepting her guilty pleas. The Court held a plea of guilty to any offense premised on an Article 77 theory of liability is sufficiently complex to require that the military judge clearly explain the relevant elements and definitions prior to accepting a guilty plea.
However, the Court held the military judge did not abuse his discretion by accepting appellant’s guilty pleas to use and distribution of methamphetamine, orders violations, and communicating a threat when the judge failed to explain the elements, relevant definitions, and terms of the offenses during the providence inquiry and relied solely on the stipulation of fact and appellant’s agreement that defense counsel had properly explained the elements, definitions, and potential defenses for all of the offenses. The Court’s reasoning was that these are simple offenses and are commonly known to service members.
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United States v. White, 62 M.J. 639 (2006)
Falsity is not a requirement for the crime of communicating a threat. The proper focus is on the purpose and intent of the underlying threat, rather than truth or falsity of the threat itself. Communicating a threat is “wrongful” when the motive for the communication is unlawful.
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United States v. Bewsey, 54 M.J. 893 (2001)
Plea of guilty to communicating a threat was improvident where the military judge did not inquire into whether the person to whom the statement was made would have perceived that the statement “I’d be seeing him later” was a threat. Although appellant indicated that he intended it to be a threat, because the proper focus on this non-specific intent crime is whether the victim felt threatened, therefore the finding is set aside.
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United States v. Hall, 52 M.J. 806 (2000)
Legal sufficiency of threat where threat was couched in terms of what the speaker “wanted” to do e.g. “I want to kill you.” (Discussion of present determination or intent to wrongfully injure).
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- Article 134 – Unlawful Entry
- Article 134 – Weapon – Concealed, Carrying
- Article 134 – Wearing Unauthorized Insignia, Decoration, Badge, Ribbon, Device, or Lapel Button
- Article 134 – Miscellaneous – Clause 1, Clause 2, or Clause 3
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United States v. Freitas, 59 M.J. 755 (2004)
A guilty plea to a single use of marijuana during the period an individual possesses a firearm in or that affects interstate commerce is not sufficient to find appellant an “unlawful user” and, therefore, to sustain a conviction under 18 U.S.C. §922(g)(3).
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United States v. Washburne, 59 M.J. 866 (2004)
Where the providence inquiry, by inference, supports that appellant possessed and distributed child pornography involving pictures of actual children, but does not explicitly say so, and the record reveals that the military judge was not given any samples of the purported child pornography, even in light of the U.S. Supreme Court’s holding in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) and the Court of Appeals for the Armed Forces’ holding in United States v. O’Connor, 58 M.J. 450 (CAAF 2003), the appellant’s guilty plea for possession and distribution of child pornography in violation of 18 U.S.C. §2252A is provident. CAAF reversed and set aside findings and sentence based on O’Connor. United States v. Washburne, 60 M.J. 396 (CAAF 2004)
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United States v. Bruce, 60 M.J. 636 (2004)
The Navy-Marine Corps Court of Criminal Appeals rejects the Ninth Circuit Court of Appeals analysis of 8 U.S.C. §1324 as requiring specific intent to violate immigration laws and adopts the Eleventh Circuit Court of Appeals analysis requiring a general criminal intent.
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United States v. Leco, 59 M.J. (2003)
Appellant’s pleas to child pornography offenses were provident were he provided detailed information to the military judge why he believed the images were of actual children and foreclosed the possibility that they images were virtual or morphed images, which the Supreme Court struck down in Ashcroft after the Appellant plead guilty.
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United States v. James, 53 M.J. 612 (2000)
8 U.S.C. 2252A (child pornography statute) neither facially overbroad nor vague.
-
- Article 77 – Principals
- Defenses
- Generally
-
United States v. Ratliff, 65 M.J. 806 (2007)
The Ex Post Facto Clause of the Constitution would not be violated by permitting prosecution of appellant’s alleged misconduct involving child sexual abuse under an extended statute of limitations. The extended statute of limitations for child abuse offenses contained in Article 43, UCMJ, applies retrospectively to all offenses in which the original statute of limitations had not expired at the time the extensions were enacted.
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United States v. Farano, 60 M.J. 932 (2005)
Statute of limitations did not run because appellant’s crime was not complete until he fraudulently received pay, not the earlier date when he made the factual misrepresentation that assisted him in receiving the pay on a later date.
-
- Affirmative Defenses
- Accident
- Defense of Property
- Duress
-
United States v. Barnes, 60 M.J. 950 (2005)
The military judge erred when he granted a Government motion in limine preventing the Appellant from introducing evidence on the duress defense to his extended period of unauthorized absence. In this case the other Sailors in his division were repeatedly hazing him. Military judge erroneously concluded that offenses of desertion and unauthorized absence are “continuing” offenses and because the Appellant’s duress did not continue he could not introduce evidence in defense of such a defense.
-
- Entrapment
-
United States v. Williams, 61 M.J. 584 (2005)
Appellant’s pleas were provident despite his assertion that he had been entrapped. While the idea about purchasing drugs came from undercover Government agents, the record indicates that the Appellant was predisposed to commit the offense.
-
- Former Jeopardy
- Gambler’s Defense
-
United States v. Falcon, 65 M.J. 562 (2006)
The “gambler’s defense” is not applicable to Art. 123a. The MJ didn’t abuse his discretion by failing to inform the appellant of the gambler’s defense during providency because Art. 123a., unlike Art. 134, making and uttering worthless checks, doesn’t contain the element of dishonor. The gambler’s defense exists where the payee tolerates an accused’s habit of writing worthless checks, not when the accused intended to defraud the payee when issuing the check.
-
- Impossibility
- Innocent Ingestion
- Innocent / Inadvertent Possession
- Justification
- Lack of Mental Responsibility
- Mistake of Fact
-
United States v. Jenkins, 62 M.J. 582 (2005)
Appellant’s plea to rape and forcible sodomy is provident despite his appellate claim of a mistake of fact defense. There is no substantial basis in law of fact to question the plea of guilt, if such a defense was raised there is ample evidence that suggest that any mistake of fact (that she consented) would not be reasonable under the circumstances.
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United States v. Gaines, 61 M.J. 689 (2005)
The Government failed to disprove the defense raised beyond a reasonable doubt. In this case the Appellant in a darkened bedroom that was previously occupied by his girlfriend believed he was touching his girlfriend. We believe he had an honest and reasonable mistake of fact as to consent for indecent assault.
-
- Necessity View Reference
- Self-Defense
- Generally
- Evidence
- Generally
-
United States v. Simmons, 54 M.J. 883 (2001)
Admission of appellant’s videotaped statement to police was not plain error even though there was a five day period between his initial rights warning and waiver and the second interrogation that did not include such warnings and waiver. Even if error, there was no prejudice as statement added nothing to prosecution’s case and even buttressed the defense theory of consent. Additionally, the Military Judge did not abuse his discretion by admitting evidence of guilty plea for UA and instructing the members that they could consider the evidence of flight as a consciousness of guilt regarding the rape offense.
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United States v. Murray, 52 M.J. 671 (2000)
Accused’s first trial was set aside for IAC. He testified in first trial and TC introduced this testimony in second trial, the subject of this appeal. On this appeal, findings set aside because accused’s testimony from prior trial was tainted by IAC from first trial.
-
- Accomplice Testimony
-
United States v. Terry, 61 M.J. 721 (2005)
Testimony of Appellant’s co-conspirator’s guilty pleas at their own trials was plain error. The testimony is appropriate when not offered to prove guilt of Appellant, but for a lawful purpose like preempting a bias challenge by the defense counsel on cross-examination.
-
- Authentication
-
United States v. Harris, 53 M.J. 514 (2000)
(1) Photographs developed from surveillance tape admissible (discussion of foundational requirements under the “silent witness” theory; (2) discussion of business record exception.
-
- Balancing
-
United States v. Pimienta, 66 M.J. 610 (2008)
Military judge did not abuse his discretion in admitting, over defense objection, post-mortem and autopsy photographs of victim’s body and skull because the trial counsel offered the photographs to illustrate the trajectory, entry and exit of the fatal pistol shot.
-
- Character
-
United States v. Pimienta, 66 M.J. 610 (2008)
The military judge did not abuse his discretion where he allowed the trial counsel to call seven junior Marines as witnesses to testify to prior acts of the appellant where the appellant handled his M9 pistol in an unsafe manner. The appellant’s level of knowledge regarding weapons safety was a fact of consequence the Government was required to prove beyond a reasonable doubt, and thus the military judge properly admitted the testimony, in part, to demonstrate the appellant’s knowledge of the required weapons handling procedures and to rebut lack of mistake or accident.
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United States v. Toohey, 60 M.J. 703 (2004)
It was error to rule that if the defense presented evidence of the appellant’s character for peacefulness, the government could cross examine witnesses about the appellant’s possession of child pornography. However, there must still be a showing of prejudice to justify relief. CAAF granted review on this issue and concluded NMCCA reached the correct decision. United States v. Toohey, 63 M.J. 353 (CAAF 2006).
-
- Confessions and Admissions
- Generally
-
United States v. Allen, 59 M.J. 515 (2003)
Appellant’s statement to NCIS was properly admitted by the military judge and was not the product of an illegal apprehension. The military member in question knew sufficient facts for him to believe that probable cause for the serious offense existed against the appellant.
-
- Admission by silence
- Article 31
- Corroboration
- Invocation of rights
-
United States v. Ibarra, 53 M.J. 616 (2000)
Special agent testimony that accused invoked his right to remain silent and his right to counsel and his right to refuse warrantless search was prejudicial plain error resulting in set aside.
-
- Motions to suppress
- Rule of completeness
- Self-incrimination
- Silence
- Subsequent confessions
- Voluntariness
-
United States v. Cuento, 58 M.J. 584 (2003), rev’d other grounds 60 M.J. 106 (CAAF 2004)
The appellant’s Due Process rights were not violated by the way the Government obtained the appellant’s confession. Although the appellant asserts that he had to confess to complete the Juvenile Court mandated counseling, in order to see his children again, we do not find any evidence that the Government authorities were acting in concert to coerce the appellant into an involuntary confession.
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United States v. Ellis, 54M.J. 958 (2001)
A Detective’s single reference to appellant and wife, that the Department of Human Services may have to take children, did not make appellant’s resulting confession involuntary. Here the statement, even viewed as an implied threat, was truthful and was made only once, and the appellant met with his wife at her request had time, in private, to consideration his options, decided to waive his rights and sign a confession.
-
United States v. Evans, 55 M.J. 732 (2001)
Under the facts of this case, we find that the appellant’s confession was not the product of his overborne will and therefore admissible.
-
- Warnings
- Generally
- Credibility
-
United States v. Abdirahman, 66 M.J. 668 (2008)
Military judge erred in allowing testimony in the Government’s case-in-chief from a witness that improperly bolstered the alleged victim’s credibility where alleged victim’s credibility had not been attacked.
-
- Expert / Scientific Testimony
-
United States v. Salinas, 65 M.J. 927 (2008)
It was plain error for the military judge to admit the therapist’s testimony relating to PTSD, but the error was harmless under a plain error analysis.
-
United States v. Elmore, 55 M.J. 533 (2001)
The military judge did not abuse his discretion in admitting the testimony of the handwriting examiner. Although the military judge did not employ the flexible Daubert analysis, but relied upon a more traditional analysis under MRE 702, we find that the field of handwriting analysis is generally valid and reliable and may properly be admitted in trials by court-martial.
-
- Hearsay
- Generally
- Adoptive Admissions
- Business entries
- Excited utterances
-
United States v. Abdirahman, 66 M.J. 668 (2008)
Error to admit statements by the alleged victim under the excited utterance exception to the rule against hearsay where the military judge failed to make findings of fact to support the conclusion that the alleged victim was still under the stress and excitement of a startling event when she made the statements, and where the military judge failed to make findings to support the conclusion that the alleged victim’s statements were not the result of reflection or fabrication.
-
- Medical exception
-
United States v. Salinas, 65 M.J. 927 (2008)
Admitting testimony pursuant to M.R.E. 803(4) from the family therapist that the six-year-old victim stated that the appellant was the particular person who raped and sodomized her was not an abuse of discretion where the record indicates that the statements were made for the purposes of diagnosis or treatment and where the record indicates the victim had some understanding of the therapist’s role, of her own treatment, and of the connection of these to resolving her nightmares.
-
United States v. Hollis, 54 M.J. 809 (2000)
MJ did not err when he admitted the out-of-court statements of child victim, through the treating doctor as a medical treatment exception to the hearsay rule.
-
- Public records and reports
- Residual hearsay
-
United States v. Coulter, 62 M.J. 520 (2005)
The record establishes ample indicators of trustworthiness in the hearsay statements to her parents regarding the offense by the 2-year-old victim. Additionally, under the Crawford analysis, the statement is not “testimonial” in nature, thus it may be admitted into evidence without violating the Confrontation Clause.
-
- State of mind
- Statement against interest
-
United States v. Clark, 61 M.J. 707 (2005)
Hearsay statements made by co-conspirator are not admissible when they are made after the object of the conspiracy is accomplished. Only when made in furtherance of the conspiracy are they admissible.
-
- Immunized Testimony
-
United States v. Gallagher, 65 M.J. 601 (2007)
The Court upheld the military judge’s decision not to direct the convening authority to grant a defense witness immunity or to abate the proceedings in light of the Government’s denial of the defense’s request because the Government did not engage in any behavior that forced the witness to invoke the privilege against self-incrimination and the testimony of the witness was not material and clearly exculpatory.
-
United States v. Clark, 61 M.J. 707 (2005)
Military judge did not commit error in failing to dismiss charges based upon improper use of his immunized testimony. Charges were referred and preferred long before immunity was given. Counsel familiar with the immunized testimony of the Appellant were screened from the case and the CA and staff judge advocate were never made aware of the immunized testimony.
-
- Impeachment
- Inferences
- Instructions on
- Intent
- Judicial Notice
- Motive
- Opinion Testimony
- Other Acts
-
United States v. Valentin-Nieves, 57 M.J. 691 (2002)
The military judge did not err in allowing the Govt, in a rape prosecution, to introduce evidence that the appellant sexually assaulted another female earlier in the day.
-
- Plan or Design
- Plea Negotiations
- Polygraph
-
United States v. Wheeler, 66 M.J. 590 (2008)
Military judge erred when, under M.R.E. 707, he refused to allow the appellant to present factual evidence regarding four polygraph examinations the appellant underwent prior to making a statement to NCIS agents. Failing to admit defense counsel’s motion in limine to permit the introduction of evidence related to the polygraph examinations prevented the appellant from presenting relevant evidence with respect to the voluntariness of appellant’s statement to NCIS agents.
-
- Prejudice
- Prior Consistent Statements
- Prior Convictions
- Prior Inconsistent Statement
- Privileges
- Generally
- Attorney-client
- Classified information
- Communications to clergy
- Husband-wife privilege
-
United States v. Taylor, 62 M.J. 636 (2006), aff’d 64 M.J. 416 (C.A.A.F. 2007)
The marital communication privilege does not apply to communications involving adultery. M.R.E. 504(c)(2) provides: “There is no privilege… [i]n proceedings in which one spouse is charged with a crime against the person or property of another spouse…” The crime of adultery is committed against the other spouse, thus, the privilege does not apply.
-
- Mental examination
- Psychotherapist-patient privilege
-
United States v. Klemick, 65 M.J. 576 (2006)
The MJ ordered the appellant’s spouse’s statements to her psychotherapist be produced for in camera review, and released relevant portions to the parties for possible use during testimony. The threshold burden required to obtain an in camera review is: 1) does sufficient factual basis exist to demonstrate a reasonable likelihood that the evidence sought will yield admissible evidence, 2) is the information sought cumulative of other available information, and 3) were reasonable efforts made to obtain the same or similar information through non-privileged sources?
-
- Proffers
- Public Records
- Rebuttal
- Relevance
- Rule of Completeness
- Scientific Evidence
-
United States v. Clark, 61 M.J. 707 (2005)
The military judge did not abuse his discretion by admitting evidence of the co-conspirator’s “negative” urine sample. Appellant and conspirators agreed to burn government building that housed co-conspirator’s urine sample because he believed it would test positive. The evidence was not offered to show other conspirators used drugs, but provided the motive for the crime and was merely secondary to more compelling government evidence.
-
- Search and Seizure
- Generally
-
United States v. Negroncruz, 63 M.J. 701 (2005)
NCIS agent did not violate the Appellant’s privacy act and thus military judge correctly denied motion to suppress DFAS records pertaining to travel claims liquidated to Mayport area ships. No personally identifiable information appeared on the information, thus it is not covered under the Privacy Act. Assuming that it did, Agent was accessing information in his official duties and thus no violation. The military judge correctly ruled that the Appellant’s Right to Privacy under the Federal Financial Privacy Act may have been violated, but such action did not amount to a violation of his 4th Amendment rights and proper remedy was not suppression of the evidence.
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United States v. Bruci, 52 M.J. 750 (2000)
There was no “quest for evidence” where NCO searched through accused trousers where NCO not acting in investigative but personal capacity and did not suspect accused of a crime.
-
- Apprehension / arrest
- Automobile exception
- Bodily views and intrusions
- Commanders
- Consent
-
United States v. Weston, 66 M.J. 544 (2008)(en banc)
Search of the appellant’s residence was reasonable under the Fourth Amendment, where the appellant’s wife consented to the search and the appellant did not. Here, there was no evidence that law enforcement agents purposefully drew the appellant away from the residence in order to deny him the opportunity to object to the search, and there was no evidence that law enforcement separated the appellant from his wife for an improper ulterior motive. Even assuming that the search was illegal and that the exclusionary rule should apply, the military judge correctly held that the evidence seized would in any case be admissible under the inevitable discovery doctrine.
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United States v. Gallagher, 65 M.J. 601 (2007)
The Court adopted the test outlined in United States v. Melger, 227 F.3d 1038 (7th Cir. 2000) when it upheld the search of a briefcase during a consent search of a home.
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United States v. Camacho, 58 M.J. 624 (2003)
Appellant provided 6 urine samples for testing in a short period of time. The first test was administered after she was arrested driving a government vehicle with what might have been drug paraphernalia. She consented to the first test. The urinalysis coordinator determined that the first test was not properly administered and discarded the sample. A second sample was immediately obtained. Later, the appellant was asked on 3 subsequent occasions, by her supervisor, to provide samples. She did on all occasions. Each of the four tests reported positive for amphetamine / methamphetamine. Later two more tests were taken and each also was positive. She contends that the first 4 tests that were reported positive were not the product of her voluntary consent. Under a totality of the circumstances, we agree with the military judge that consent was voluntarily given. He may properly consider, amongst the other factors, that on the first test, she was advised her right to refuse, as evidence of her consent to the next 4 tests.
-
United States v. Greene, 56 M.J. 817 (2002)
The Court, in a case reviewed pursuant to Art. 62, UCMJ, reversed the military judge’s ruling, to suppress evidence of the images of child pornography found on the accused’s computer. After receiving information that the accused possessed images of child pornography in his barracks room, the NCIS asked for consent to search his room. The consent form indicated that the accused gave the agents consent to search his room on that date and to seize evidence. The agents found no evidence of child pornography, and did not search the accused’s computer in the room. Rather they shut it down and brought it to a lab where agents later conducted his analysis of the computer and its contents. The military judge ruled that the accused gave the agents consent to search only on the day in question, and that its subsequent analysis of the computer violated the scope of the search that the accused consented to. The court held that the military judge erred in his application of the law, and the plain reading of the entire consent form and the logistics of a computer search indicate that the agents acted reasonably and within the scope of consent.
-
- Derivative evidence
- Exclusionary rule
- Expectations of privacy
-
United States v. Ohnesorge, 60 M.J. 946 (2005)
Military Judge did not abuse his discretion when he denied the Appellant’s motion to suppress his Internet Provider’s subscriber information as the Appellant did not have a reasonable expectation of privacy in the information. of note is the fact that the subscription is opened and paid for by credit card through a third party. Additionally, the Appellant’s contract with the ISP indicates that the ISP has the right to monitor the user’s activity and may have to disclose information, as necessary to satisfy law, regulations, or government request.
-
- Good faith exception
- Inevitable discovery
-
United States v. Weston, 66 M.J. 544 (2008)(en banc)
Search of the appellant’s residence was reasonable under the Fourth Amendment, where the appellant’s wife consented to the search and the appellant did not. Here, there was no evidence that law enforcement agents purposefully drew the appellant away from the residence in order to deny him the opportunity to object to the search, and there was no evidence that law enforcement separated the appellant from his wife for an improper ulterior motive. Even assuming that the search was illegal and that the exclusionary rule should apply, the military judge correctly held that the evidence seized would in any case be admissible under the inevitable discovery doctrine.
-
- Investigatory stop
- Neutral and detached
- Plain view
- Probable cause
- Stop and frisk
- Warrants
- Wiretaps
- Sexual Assault and Child Molestation
-
United States v. Carlson, 67 M.J. 693 (2009)
Appellant was convicted by members of violations of Articles 92, 93, 107, 125 and 134. He was sentenced to 15 years and a DD. Submitted to NMCCA on a motion to reconsider in light of alleged new evidence regarding the USACIL chemist – Mr. Mills – who conducted serological testing in this case. The court ordered two DuBay hearings to fully inquire into the misconduct allegations. In 2005, USACIL had published two memos in which they outlined a series of mistakes made by Mr. Mills, who later resigned. NMCCA affirmed the findings and sentence in this case as the DuBay hearings indicated that there was no evidence of cross-contamination in the case. If anything, the court said the Mr. Mills had missed evidence which would have been helpful to the Government. NMCCA recognized that this information may have been helpful at trial for impeachment, but that it alone could not lead them to the conclusion that the verdict would “probably” have been different.
-
United States v. Yammine, 67 M.J. 717 (2009)
Appellant was convicted by members of violations of Articles 121, 125 and 134. He was sentenced to eight years, fined $7000 (with an additional year if he failed to pat the fine) and a DD. Appellant was convicted of forcible sodomy on a boy between the age of 12 and 16. During the investigation, appellant’s computer was seized, yielding file names (without the actual files) which would be indicative that they once contained child pornography. The Government argued that the names of the sites were relevant and admissible under MRE 414. The MJ allowed the evidence to be introduced. In a case of first impression, NMCCA considered whether file names suggestive of possession of child pornography constitute a qualifying offense under MRE 414. Held that these names are admissible under MRE 414. NMCCA also held that “possession, or attempted possession, of child pornography also qualifies as an ‘offense of child molestation’ under MRE 414(d)(2) and (g)(5).”
-
United States v. Taylor, 62 M.J. 636 (2006), aff’d 64 M.J. 416 (C.A.A.F. 2007)
Testimony that the appellant took the victim’s virginity was not an abuse of discretion under M.R.E. 412. The evidence was not offered to prove that the victim engaged in other sexual behavior, or had a particular sexual predisposition. The MJ also determined on the record that the victim and her mother wanted the members to know that information, and permitted the appellant wide latitude on cross-examination for impeachment of that point.
-
United States v. Coulter, 62 M.J. 520 (2005)
Appellant claims that the probative nature of prior acts of uncharged child molestation is substantially outweighed by the danger of unfair prejudice in this child molestation case. Due in part because this was a trial by military judge alone, the risk of danger was lessoned to a degree that didn’t outweigh the probative value.
-
United States v. Valentin-Nieves, 57 M.J. 691 (2002)
The military judge did not err in allowing the Govt, in a rape prosecution, to introduce evidence that the appellant sexually assaulted another female earlier in the day.
-
United States v. Roberts, 55 M.J. 724 (2001)
Although the factual scenario behind the appellant’s previous, uncharged sexual assault was different to the facts alleged in the charged assault, it was still admissible pursuant to MRE 413. The similarity or divergence of the two acts of sexual misconduct are focused on the threshold issue of relevance, not the issue of admissibility. The military judge performed a proper MRE 403 balancing test when he contemplated the admission of a previous act of sexual misconduct pursuant to MRE 413.
-
United States v. McDonald, 53 M.J. 593 (2000)
The military judge did not err in admitting 413/414 evidence of similar sex crimes (applies the 5-part test of U.S. v. Myers, 51 M.J. 570).
-
- Generally
- Stipulations View Resource
- Summaries View Resource
- Suppression View Resource
- Transcripts of Audio Recordings
- Uncharged Misconduct
-
United States v. Gallagher, 65 M.J. 601 (2007)
During appellant’s trial for possession of child pornography and violation of the South Carolina “peeping Tom” statute, the military judge properly admitted evidence of uncharged misconduct consisting of the stipulated testimony of a girl with whom the appellant had intercourse nine to twelve years earlier.
-
- Waiver
- Generally
- Witnesses
- Ake Appointments
- Child Witness
- Confrontation
-
United States v. Christian, 61 M.J. 560 (2005)
Military judge did not error in limiting the scope of cross-examination of the prosecutrix and failing to strike the entire direct examination testimony when the witness refused to answer certain questions and instead invoked her Fifth Amendment right against self-incrimination. Appellant sought to introduce extrinsic evidence of prosecutrix’s thievery of Appellant’s property. Even assuming an abuse of discretion, it was harmless beyond a reasonable doubt as other evidence was admitted of the prosecutrix’s criminal acts which allowed the Appellant to argue his defense.
-
- Experts
-
United States v. Delgado, __ M.J. __ (2009)
MJ abused discretion. By denying the defense request for expert witnesses, when it cases relied heavily on multiple experts in a “shaken-baby” involuntary homicide case.
-
United States v. Abdirahman, 66 M.J. 668 (2008)
Military judge erred by allowing testimony of a nurse practitioner on whether the alleged victim’s physical and emotional conditions were “common” or “not uncommon” compared to other rape victims. Such testimony became expert testimony, and here the government failed to provide the required notice of an expert witness to the defense.
-
United States v. Cuento, 58 M.J. 584 (2003), rev’d other grounds 60 M.J. 106 (CAAF 2004)
The witness’ testimony was not an improper comment on the credibility of the appellant or the victim. The witness did not testify that he believed the victim or disbelieved the Appellant, he merely indicated that in many child sex cases, the perpetrator will provide a recitation of facts that include innocent explanations why sexual contact occurred, for example, during horseplay.
-
United States v. Sowders, 53 M.J. 542 (2000)
It was error to admit testimony of special agent that he concluded the accused conspired to steal. Such opinion testimony intrudes into the area solely reserved for fact finders.
-
- Impeachment of
-
United States v. Barnes, 57 M.J. 626 (2002)
It was proper to allow the trial counsel to cross-examine the Appellant’s good character witnesses about whether they knew that the Appellant associated with a known drug user. Evidence was not sought to establish guilt by association, but to rebut the Appellant’s proffered good-military-character defense.
-
United States v. Kirt, 52 M.J. 699 (2000)
It was not error for TC, when cross-examining accused to comment on the accused’s ability to tailor his testimony after sitting through trial and observing all other witnesses.
-
- Oaths
-
United States v. Washington, 61 M.J. 574 (2005)
Absent plain error, the failure to object at trial regarding the form of the oath of a government witness forfeits the issue on appeal. Even assuming no forfeiture, no error exists when the child witness testified that she knew the difference between truth and falsehood prior to her testimony, and swore that her testimony was true after direct examination, and was sworn prior to re-direct.
-
- Production of
- Scope of Permissible Testimony
-
United States v. Tovar, 63 M.J. 637 (2006)
The MJ did not err in failing to provide a curative instruction on the impermissibility of “human lie detector” testimony. The NCIS agent’s testimony on his disbelief of the appellant’s initial statement did not create a plain error because the inconsistency between the appellant’s two statements to NCIS was apparent on its face, and the appellant’s theory of the case embraced that inconsistency.
-
United States v. Terry, 61 M.J. 721 (2005)
The victim advocate testified that the victim appeared genuine. Court held impermissible “lie detector” testimony, however no error especially due to military judge’s instructions.
-
United States v. Simmons, 54 M.J. 883 (2001)
Even though it was error to allow the investigator to testify that in her opinion the appellant was lying when he denied raping the victim, there was no substantial prejudice to the appellant where there was ample evidence corroborating the victim’s statements, the military judge gave proper limiting instructions, and there was only a single impermissible question and response.
-
United States v. Oliver, 56 M.J. 695 (2001)
It was error for the investigator to testify that the accused declined to sign a statement and requested a lawyer, after he made incriminating, oral statements to him. This error, however, was not plain error.
-
United States. v. Ibarra, 53 M.J. 616 (2000)
Special agent testimony that accused invoked his right to remain silent and his right to counsel and his right to refuse warrantless search was prejudicial plain error resulting in set aside.
-
United States v. Jackson, 54 M.J. 527 (2000)
Opinion testimony of the CO, that once the Appellant’s actions came to light, he believed it had a negative effect on good order and discipline was not erroneously admitted.
-
United States v. Graham, 54 M.J. 605 (2000)
MJ did not abuse discretion in preventing Appellant to introduce evidence of victim’s sexual relationship with her boyfriend. Victim and boyfriend were forbidden, by her parents and a court order from seeing each other. Appellant sought to introduce the evidence of a sexual relationship for his pre-emptive strike defense (he caught the two of them together). MJ allowed him to present defense, however found that the nature of their relationship to not add anything to her motive to fabricate, once she was caught with her boyfriend.
-
United States v. Sowders, 53 M.J 542 (2000)
MJ questioned accused in a manner intended solely to discredit him before members. Results in set aside of findings.
-
- Sequestration
-
United States v. Quintanilla, 60 M.J. 852 (2005), aff’d in part and rev’d in part (on other grounds) 63 M.J. 29 (CAAF 2005)
Military judge erred by allowing three sentencing witnesses to observe entire trial, however no material prejudice to the substantial rights of the appellant was caused by such error.
-
United States v. Ducharme, 59 M.J. 816 (2004)
Where the military judge did not sequester the victim’s mother, a Government sentencing witness, during the merits, even though trial defense counsel moved for her exclusion under R.C.M. 806(b), even if such a decision constitutes error, although the burden is on the Government to show it was harmless, no relief will be granted if the record is devoid of any evidence of material prejudice and appellant alleges none.
-
- Burdens, Standards, Presumptions, Inferences
- Trial Burdens, Standards
- Generally
- Affirmative defenses
- Appointment of experts
- Clergy privilege
- Confessions and admissions
- Consent to search
- Immunity
-
United States v. Allen, 59 M.J. 515 (2003)
Appellant’s statement to NCIS was properly admitted by the military judge and was not derived from immunized statements made to the state child protective service therapist.
-
- Lack of mental responsibility
- Lawfulness of orders / regulations
- Marital privilege
-
United States v. Vandyke, 56 M.J. 812 (2002)
The husband-wife privilege does not apply to acts, or communications that are not intended to be confidential. The privilege to preclude confidential communications also cannot be invoked by the accused to prevent his wife from testifying regarding communications she made to him.
-
- Pretrial punishment
- Proof, persuasion
- Selection of members
- Psychiatrist / Patient privilege
- Trial Presumptions, Inferences
- Appellate Burdens, Standards, etc.
- Generally
- Admission / suppression of evidence
-
United States v. Rodriguez, 57 M.J. 765 (2002)
The military judge did not abuse his discretion in failing to enforce compliance with a subpoena duces tecum where the appellant failed to show that the evidence in question was relevant and necessary.
-
- Capital cases
- Command influence
- Continuance
- Instructions
- Presumptions
- Proof, persuasion
- Selection of court members
- Appellate Presumptions, Inferences
- Trial Burdens, Standards
- Motions, Generally
- Pretrial
- Generally
-
United States v. Wuterich, 66 M.J. 685 (2008), vacated and remanded, 2008 CAAF LEXIS 1208 (C.A.A.F. Nov. 17, 2008)
Military judge abused his discretion in quashing Government subpoena of non-party (CBS Broadcasting Inc.) on the basis that the requested evidence (audio/video out-takes and footage not aired in television interview with nominal appellee) was cumulative, without first conducting an in camera review of the evidence.
-
United States v. Oliver, 56 M.J. 695 (2001)
The military judge did not abuse his discretion in denying the appellant’s request for a continuance to retain civilian defense counsel. The military judge gave fair warnings to the appellant and the appellant failed to exercise reasonable diligence in obtaining counsel.
-
- Severance
-
United States v. Evans, 55 M.J. 732 (2001)
The military judge did not abuse his discretion by not severing the appellant’s charges. There was no manifest injustice by not severing the different sexual assaults.
-
- Generally
- Merits
- Burden
- Standing
-
United States v. Wuterich, 66 M.J. 685 (2008), vacated and remanded, 2008 CAAF LEXIS 1208 (C.A.A.F. Nov. 17, 2008)
Nominal appellee lacks standing in Art. 62, UCMJ, interlocutory appeal challenging a military judge’s order quashing a Government subpoena issued to a non-party (CBS Broadcasting Inc.).
-
- Motions to Dismiss
- Pretrial
- Crimes
- Trial Stages
- Pretrial
- Charges and Specifications
- Competence of the Accused
- Discovery
-
United States v. Taylor, 60 M.J. 720 (2004)
Where the military judge has imposed a sanction in the form of prohibiting testimony of a key witness if the Government does not turn over evidence the military judge determines to be relevant and material NMCCA may hear the Government appeal even though the military judge has not yet excluded evidence that is substantial proof of a material fact in the proceeding.
-
- Investigations (Article 32)
-
Diaz v. United States, 54 M.J. 880 (2000)
Petitioner seeks reopening Article 32 hearing by way of an extraordinary writ. No relief granted where charges which were investigated an Article 32, UCMJ hearing and referred to general courts-martial, were later dismissed because of a technical defect in the original preferral of charges (accuser was not authorized to administer oath) and then were re-preferred and re-referred to the same general court-martial. To require a new Article 32 hearing would exalt form over substance.
-
- Pretrial Advice
- Pretrial Restraint
- Pretrial Confinement
-
United States v. Kinzer, 56 M.J. 741 (2002)
In a prior opinion of the court, the appellant was granted 220 days credit for illegal pretrial confinement. On reconsideration the appellant asserts that since he has already served his term of confinement, in order to provide him with meaningful relief, the court should set aside his bad-conduct discharge. If the appellant had been in pay status, disapproving confinement already served could had resulted in him recouping of automatic forfeitures, however, since he was not, we believe crediting 220 days confinement credit against a bad-conduct discharge would provide the appellant with a windfall he is not due.
-
United States v. Plowman, 53 M.J. 511 (2000)
There is no requirement to award any more than day-for-day credit for simultaneous violations of separate R.C.M. provisions regulating pretrial confinement.
-
United States v. Chaney, 53 M.J. 621 (2000)
Appellant is entitled to credit for pretrial confinement when held by civilian authorities for strictly military offense.
-
United States v. Fuson, 54 M.J. 523 (2000)
Appellant was entitled to additional credit for being placed in special quarters, or highest security, because of a medical condition.
-
- Pretrial Restriction
-
United States v. Globke, 59 M.J. 878 (2004)
There is an anomaly in the way in which credit for prior nonjudicial punishment under United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) can be applied in that depending on whether the credit is applied by the convening authority or the military judge, and whether there is a pretrial agreement or not, that can result in disparate amounts of credit. The issue should be reviewed by appellate courts or some action should be taken to modify the Rules for Courts-Martial.
-
- Pretrial Punishment
-
United States v. Mazer, 62 M.J. 571 (2005)
Appellant did not suffer pretrial punishment in violation of Article 13, UCMJ. Appellant’s conditions, while austere, were not such that he was deprived his basic needs. The conditions of confinement were rationally related to a legitimate government interest.
-
United States v. Fischer, 60 M.J. 650 (2004)
Termination of pay upon the expiration of enlistment while in pretrial confinement is not unlawful pretrial punishment.
-
United States v. Pryor, 57 M.J. 821 (2003)
Appellant was not subjected to pre-trial punishment due to his assignment in the special quarters portion of the pre-trial confinement facility. The appellant has failed to how that the government acted with intent to punish or that the decision to place him in special quarters was arbitrary and capricious.
-
United States v. Inong, 57 M.J. 501 (2002)
The appellant’s references to his conditions of pre trial confinement, made to the military judge in the sentencing hearing, was tantamount to an affirmative waiver of the issue of pretrial punishment.
-
United States v. Sittingbear, 54 M.J, 737 (2001)
Appellant’s statement in a stipulation of fact that the pretrial confinement he served was legal, as part of a negotiated PTA, amounted to an affirmative waiver of the issue. Even assuming no waiver, the imposition of maximum custody was based upon proper detention concerns and was not imposed as a means to punish the appellant before trial, therefore it was not illegal.
-
United States v. Evans, 55 M.J. 732 (2001)
Appellant was made to suffer illegal pretrial confinement when he was assigned to special quarters based solely on the amount of confinement time he could received for the charged offenses.
-
United States v. Kinzer, 56 M.J. 739 (2001)
The appellant is awarded 220 days of pretrial confinement credit, in addition to the Allen credit he already received, for illegal pretrial confinement. Here the appellant was placed in special quarters based solely on the length of potential confinement he could receive. Once he signed a pretrial agreement, he was released from special quarters and placed in the general population. Thus his pretrial confinement was more rigorous than necessary to ensure his presence at trial and was based upon an arbitrary standard operating procedure.
-
United States v. Edwards, 54 M.J. 761 (2000)
Appellant is absolutely entitled to credit for punishment for the previous punishment of the same offense at NJP.
-
- Motions
- Referral
- Merits
- Pleas, generally
- Guilty Pleas
-
United States v. Coffman, 62 M.J. 677 (2006)
A substantial question in law and fact existed regarding the appellant’s guilty plea to larceny of abandoned property. The military judge failed to inquire about mistake of fact, which is a defense to the specific intent crime of larceny. By only asking legal conclusions and failing to define “abandoned property” for the appellant, the MJ committed an abuse of discretion.
-
United States v. Tanner, 61 M.J. 649 (2005)
Appellant claims he was induced to plea guilty because of erroneous advice regarding maximum punishment. Appellant claims he was told that he could face Life Without Eligibility for Parole, but his trial was before the Executive Order was promulgated which implemented to National Defense Authorization Act which changed the punishment level for certain crimes. Court held that between Congress’s enactment of the law, but before executive implementation, LWOP was authorized and therefore Appellant was correctly advised.
-
- Pretrial Agreements
-
United States v. Gallaspie, 63 M.J. 647 (2006)
A pretrial agreement provision waiving the right to object to pre-sentencing evidence on the basis of hearsay, foundation, and authenticity, affirmatively waives any objection under the Confrontation Clause grounds. And such a provision is does not violate public policy.
-
United States v. Mitchell, 62 M.J. 673 (2006)
A pretrial agreement provision expressly waiving the right to raise the issue of unreasonable multiplication of charges did not violate due process, or public policy, and was enforceable.
-
United States v. Smead, 60 M.J. 755 (2004)
There was a material misunderstanding of the parties to a pretrial agreement where appellant, who plead guilty to viewing, receiving and downloading child pornography, specifically negotiated a provision under which the convening authority would direct confinement to a specific brig facility to complete a sex offender treatment program and although appellant was confined at the facility, he was transferred to another facility before completing the program. Unknown to the convening authority at the time of the signing of the pretrial agreement was a regulatory scheme that overrode the authority of the convening authority to direct the place of confinement. “Ignorance of the law on a material matter cannot be the prevailing norm in the legal profession or in the court-martial process.” United States v. Williams, 53 M.J. 293 (CAAF 2000). Remanded for rehearing or to grant specific performance.
-
United States v. Sunzeri, 59 M.J. 758 (2004)
A pre-trial agreement provision denying appellant the ability to present any evidence, including in-person or telephonic testimony, affidavits, prior testimony or letters, from witnesses who did not live on the island of Oahu deprived appellant of a complete sentencing hearing, even though appellant and his trial defense counsel proposed the term of the agreement.
-
United States v. Thomas, 60 M.J. 521 (2004)
A provision of a presentencing agreement that prohibits an accused from accepting clemency if granted is void as it is against public policy.
-
United States v. Parker, 60 M.J. 666 (2004)
The military judge erred by rejecting a guilty plea to missing movement where the appellant plead guilty and explained how he knew of the upcoming movement and the military judge felt the source of information about the upcoming movement was unreliable. The Government withdrew from the pretrial agreement which provided for suspension of an adjudged bad-conduct discharge. In a post trial clemency request, appellant requested that his discharge not be suspended and that he receive a suspension on confinement in excess of 30 days. This constituted a withdrawal from the terms of the pretrial agreement by the appellant and he is not now entitled to the benefit of the pretrial agreement relating to suspension of his bad-conduct discharge even though it was error for the military judge to have rejected his guilty plea, causing the Government to withdraw from the pretrial agreement. CAAF affirms the result, but finds that NMCCA erred in that the military judge was acting within his discretion in rejecting the guilty plea and the Government, therefore, was within its rights to withdraw from the pretrial agreement. United States v. Parker, 62 M.J. 459 (CAAF 2006).
-
United States v. Henthorn, 58 M.J. 556 (2003)
A pretrial agreement that required the appellant to forfeit his personal computer was lawful and did not constitute a punishment that was not authorized by the UCMJ. The computer in question was used to perpetrate the child pornography offenses. Federal statutes can require the forfeiture of personal property in such cases even when no adjudication of criminality results. Hence, the term in the pretrial agreement was not punishment and the appellant could have declined to enter the pretrial agreement had he believed the terms too onerous.
-
United States v. Juarez, 54 M.J. 974 (2001)
Guilty plea is improvident and must be set-aside where a mutual misunderstanding as to a material provision of a pre-trial agreement renders the appellant’s plea involuntary. In this case the appellant negotiated for more confinement if the convening authority would defer and waive automatic forfeitures to his dependents, however, appellant was in a no pay status at the time of trial and would not receive any pay.
-
- Confessional Stipulations
- Motions
-
United States v. Evans, 55 M.J. 732 (2001)
Military judge did not abuse his discretion by denying a defense request for a continuance when the request was made near the end of trial, the request was to investigate a possible defense (that the accused did not actually sign his confession). The appellant was in the best position to pass this information to his counsel previously, and the appellant never took the stand, for the limited purpose of the motion, and testify that it was not his signature.
-
- Trial Procedures
- Generally
- Arraignment
- Forum election
-
United States v. Goodwin, 60 M.J. 849 (2005)
Appellant was never advised about his forum rights nor did he expressly elect trial by military judge alone on the record, either personally or through counsel. Although a “stock” paragraph in the pretrial agreement indicates his election to trial by military judge alone, the military judge never discussed the paragraph with the Appellant. This case differs than binding precedent where there was substantial compliance even though the forum selection was initially lacking. In other cases the Government was able to cure the error. All Charges are set aside and the convening authority may hold a rehearing.
-
- Oaths
- Rebuttal
- Voir dire
- Withdrawal of charges
- Multiplicity for Findings
-
United States v. Campbell, 66 M.J. 578 (2008)
Downloading child pornography to a government computer, transferring those same images to compact discs, and uploading those same images to a home computer, were not considered multiplicious for findings. The Court found that all three specifications are not facially duplicative, because the first two specifications pertain to the possession of two distinct pieces of media containing images of child pornography, while the third specification pertains to the possession of images of child pornography at the appellant’s home on the appellant’s personal computer.
-
- Argument
-
United States v. Abdirahman, 66 M.J. 668 (2008)
Trial counsel’s repeated references to the evidence as “undisputed” during closing argument was error, where only the appellant could have disputed the details of the rape as testified to by the alleged victim.
-
United States v. Pimienta, 66 M.J. 610 (2008)
Assuming that it was error to allow the trial counsel to refer to the appellant as a liar where appellant was charged with, inter alia, making a false official statement, the error does not rise to the level of plain error. The trial counsel had to prove that the appellant’s statement in question was false, and it is expected that the trial counsel would address the falsity of appellant’s statement.
Assuming that it was error to allow the trial counsel to use the personal pronoun “we” often in his closing argument, the error was harmless because the military judge instructed the members that arguments of counsel are not evidence.
Trial counsel’s comment on the accused’s failure to testify did not materially prejudice the appellant’s substantial rights because the isolated comment appears once in over 16 pages of Government argument in the record, the trial defense counsel conceded the trial counsel’s point that the appellant shot the victim, and because the military judge properly instructed the members on the accused’s rights.
-
United States v. Dearing, 60 M.J. 892 (2005) aff’d in part and rev’d in part (on other grounds),63 M.J. 78 (CAAF 2006)
The military judge did not abuse his discretion in failing to grant a mistrial due to the alleged improper argument on the merits by trial counsel. Military’s judges instructions were aimed at an appropriate limitation of the evidence trial counsel was arguing and even assuming error, no material prejudice to the substantial right of the appellant has been shown.
-
United States v. Cuento, 58 M.J. 584 (2003), rev’d other grounds 60 M.J. 106 (CAAF 2004)
The trial counsel did not improperly elicit testimony that commented on the appellant’s right to counsel. The witness volunteered the testimony, that the appellant retracted his confession after talking to his lawyer, the witness attempted to retract the testimony, the trial counsel did not delve further into the comment, and the trial defense counsel did not object. We find no plain error. We do find error in the trial counsel’s comment about this testimony in his closing argument on the merits. However, we find that the error was harmless.
-
United States v. Vandyke, 56 M.J. 812 (2002)
A prosecutor may comment upon the fact that the trial defense attorney promised to show the fact-finder some evidence that he has failed to show them. This is not an improper burden shifting.
-
- Instructions
- Generally
-
United States v. Simmons, 54 M.J. 883 (2001)
Military Judge did not abuse his discretion by admitting evidence of guilty plea for UA and instructing the members that they could consider the evidence of flight as a consciousness of guilt regarding the rape offense.
-
United States v. Evans, 55 M.J. 732 (2001)
Appellant claims a wide variety of instructional errors. Those in which he failed to object at trial are waived in the absence of plain error. We do not find plain error. One instruction was the verbatim instruction requested by the appellant, hence, it cannot be subject to relief on appeal.
-
United States v. Oxendine, 54 M.J. 508 (2000)
The MJ’s instructions on proximate cause and contributory negligence were not erroneous and provided lucid guideposts for the members to follow.
-
- Lesser-included offenses
- Affirmative defenses
- Accomplice testimony
- Divers occasions
- Generally
- Findings
-
United States v.Trew, 67 M.J. 603 (2008)
Although the military judge’s initial announcement of findings to lesser included offenses were ambiguous, the record and the statement made contemporaneously by the military judge allow this court to affirm a finding of guilty to the offense which the military judge found the appellant had committed. In this case the specification indicated that the appellant had committed the offense on divers occasions. The military judge announced that she was convicting the appellant of the LIO. When TC asked as to whether it was every occasion or just one, the military judge indicated that it was just a single incident. The record demonstrates that the military judge believed only one of the two incidents had sufficient corroboration, as she stated in her pretrial motion ruling, which identified, by date the incident she convicted the appellant.
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United States v. Pryor, 57 M.J. 821 (2003)
Military judge should have entered findings by exception and substitution where the appellant’s answers that he provided in the providence inquiry and the stipulation of fact do not substantiated the entire period of time, that the charge sheet alleges that the offenses were committed.
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United States v. Madigan, 54 M.J. 518 (2000)
Possession of child pornography was not a LIO of the receipt of the same, where the possession occurred long after the receipt.
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- Mistrial
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United States v. Dossey, 66 M.J. 619 (2008)
A military judge’s mistrial declaration was an abuse of discretion where the judge did not sufficiently develop the facts to support the mistrial declaration, inquire into the views of the parties, or determine if less drastic alternative remedies were adequate to address the problem.
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United States v. Dearing, 60 M.J. 892 (2005) aff’d in part and rev’d in part (on other grounds),63 M.J. 78 (CAAF 2006)
The military judge did not abuse his discretion in failing to grant a mistrial due to the alleged improper argument on the merits by trial counsel. Military’s judges instructions were aimed at an appropriate limitation of the evidence trial counsel was arguing and even assuming error, no material prejudice to the substantial right of the appellant has been shown.
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United States v. Goode, 54 M.J. 836 (2001)
No mistrial where military judge previously instructed members regarding DNA probability evidence, required the government to introduce the more conservative probabilities, told members to disregard the statement that the expert believed the probabilities were higher than the number given, and then did voir dire with the members to see if they could disregard the statement.
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United States v. Odom, 53 M.J. 526 (2000)
The failure of a witness to show up at trial is not the proper basis for granting a mistrial where trial counsel / Government played no part in the witness’ absence.
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United States v. Graham, 54 M.J. 605 (2000)
TC did not violate RCM 701, in not providing name of rebuttal witness to defense, therefore the MJ’s decision not to grant a mistrial was appropriate. The witness could not have been called in the government’s case-in-chief and was only relevant after the defense case. Moreover, this was not a rebuttal witness to counter the defenses of alibi, innocent ingestion, or lack of mental responsibility, which under the RCM requires notice.
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- New Trial
- Sentence and Punishment
- Evidence
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United States v. Edwards, 65 M.J. 622 (2007)
The military judge erred by excluding testimony during sentencing, which involved “retention evidence” pertaining to appellant’s rehabilitative potential. The Court adopted and applied the 4-part test set forth in Judge Crawford’s dissent in U.S. v. Saferite, 59 M.J. 270 (C.A.A.F. 2004) to determine whether the error “substantially influenced the adjudged sentence”.
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United States v. Davis, 65 M.J. 749 (2007)
During a rehearing on sentence, the military judge erred by excluding evidence of facts arising after the original sentencing date. The Court reasoned that the Rules for Court-Martial do not impose a temporal limit on evidence at a rehearing on sentence and must be read in light of judicial decisions establishing a “broad right” to present mitigation evidence.
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United States v. Tanner, 61 M.J. 649 (2005)
Appellant’s promulgating order his first court-martial (guilty plea) was introduced during sentencing in this court-martial. Subsequently, this court set aside his previous conviction because the Government was unable to comply with all the terms of the PTA, namely the deferred and waived forfeitures did not get to Appellant’s wife in a timely manner. She had to wait 5 months. The court allowed Appellant to withdraw from the plea and the CA elected to not prosecute him again. Introduction of the previous court-martial was error but we are confident that the error was harmless beyond a reasonable doubt. The military judge expressly noted that he will only punish Appellant for the present offenses; the underlying conduct could have been proper aggravating evidence a prior sexual misconduct as long as the proper MRE 403 test is performed.
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United States v. Mazer, 62 M.J. 571 (2005)
No relief will be granted due to victim’s father testifying that Appellant should be awarded the maximum punishment. The Appellant failed to object and that waives the issue in the absence of plain error. In this case the witness, obviously distraught, testified that he did not even know what the maximum punishment was, but that it should be awarded. The military judge awarded a punishment that was less than one-third of the maximum punishment. Obviously this testimony did not sway the judge and was not plain error.
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United States v. Dezotell, 58 M.J. 517 (2003)
It was not error to allow the Government to introduce testimony from the appellant’s senior chief regarding the detrimental impact on the command that was caused, in part, by the appellant’s absence-type offenses. Here the appellant absented himself from his ship during a deployment that was being conducted for the purposes of a certain ship certifications. The appellant’s division had to back-fill his position when he left the command.
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United States v. Kahmann, 58 M.J. 667 (2003)
Prosecution introduced evidence of the appellant’s prior summary court-martial without showing evidence of compliance with United States v. Booker, 5 M.J. 238 (C.M.A. 1977), as modified by, United States v. Mack, 9 M.J. 300 (C.M.A. 1980)(that he was afforded an opportunity to consult with counsel and that the appropriate Art. 64, UCMJ review was completed after conclusion of the prior SCM). Appellant forfeited appellate consideration of the issue by failing to object at trial.
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United States v. LePage, 59 M.J. 659 (2003)
Military Judge committed plain error by admitting NJP that predated appellant’s court-martial misconduct by over 2 years. In post-trial 39(a) session the military judge realized his error, admitted to the prejudice it caused the Appellant, but believed himself to be powerless to change his sentence. No objection is required at trial when plain error exists.
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United States v. Lowe, 56 M.J. 914 (2002)
It was error to allow the Government to admit evidence that shows that the appellant had harassed and assaulted women, who were not involved charges before the court-martial in order to rebut defendant’s expert’s testimony that he was not a serious threat to society. The Government’s action was an attempt to back-door inadmissible aggravation evidence under the guise that it was evidence that was offered to impeach a defense witness.
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United States v. Driver, 57 M.J. 760 (2002)
Military judge did not clearly abuse his discretion in admitting evidence, in sentencing, of the destruction of multiple vehicles when the appellant was convicted of conspiracy and arson involving one vehicle is evidence of the appellant’s false statement to investigators. Evidence of others vehicles merely indicates that the appellant and others contemplated destroying other vehicles and was probative of the appellant’s state of mind when he entered the charged conspiracy. Further, the evidence of the appellant’s false statement was directly related to the charged offenses, and even if in error, no prejudice resulted.
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United States v. Sittingbear, 54 M.J, 737 (2001)
Aggravation evidence from the victim of a rape, which included that she learned she had anal trauma during her medical examination, was proper even though the government did not pursue a charge of sodomy against the appellant. Uncharged misconduct is often appropriate evidence in aggravation when it accompanies the offense of which an accused has been found guilty.
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United States v. Steward, 55 M.J. 630 (2001)
Military judge erred when he failed to allow hearsay testimony of a defense witness on sentencing after the rules of evidence have been relaxed. The military judge based his ruling on the incorrect belief that relaxing the rules of evidence applies to documentary evidence as opposed to testimonial evidence.
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United States v. Evans, 55 M.J. 732 (2001)
Allowing the victims to testify in sentencing was not prejudicial error when the victims were present in court for closing arguments and had been seen talking to each other. The military judge conducted voir dire upon the two victims and did not abuse his discretion in allowing them to testify following that voir dire.
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United States v. Fuson, 54 M.J. 523 (2000)
It was error for TC to introduce evidence of the appellant’s prior NJP for one of the charges he plead guilty to at the court-martial. The record is insufficient to ascertain whether the MJ applied credit from the NJP against the sentence he adjudged, or merely considered the previous punishment. If the latter occurred, there may be material prejudice, therefore we provide relief.
-
- Unsworn Statements
-
United States v. Sowell (Sowell II), 59 M.J. 552 (2004)
After Sowell I the government requested en banc reconsideration. Sowell II upheld the military judge’s decision to exclude mention of a co-conspirator’s acquittal on the basis that United States v. Grill, 48 M.J. 131 (CAAF 1998), did not stand for the proposition that there were no boundaries to what an accused can say in an unsworn statement and because of United States v. Teeter, 16 M.J. 68 (CMA 1983) an accused is still restricted from attacking the findings of guilty in the sentencing phase. CAAF remanded saying that under the facts of this particular case, the statement about the acquittal of the co-conspirator was a fair response to the trial counsel’s closing argument in which he implied the co-conspirator had been found to have criminal liability. Judge Crawford dissented accusing the majority of treating the court-martial appellate process like a “sweepstakes” rather than following the rule of law. United States v. Sowell, 62 M.J. 150 (CAAF 2005).
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United States v. Adame, 57 M.J. 812 (2003)
The military judge erred when he questioned the appellant about his unsworn statement, which indicated his desire to receive a bad-conduct discharge. The military judge erred when he further questioned trial defense counsel whether he tried to talk the appellant out of his request for a bad-conduct discharge, however, no prejudice resulted from these errors.
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United States v. Sowell, 59 M.J. 552 (2003)
The military judge erred when he would not allow Appellant to mention that her co-conspirator was acquitted of all charges during her unsworn statement. The testimony she sought to introduce was relevant to disparate treatment as well as sentence of companion cases.
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- Argument
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United States v Melbourne, 58 M.J. 682 (2003)
Trial counsel’s sentencing argument was not plain error when he told the military judge to imagine what the last seconds of the victim’s life were like as he was drowning. The comments were based upon evidence received by an expert in the case. The expert described what happens to a person as they drown. This is appropriate victim-impact aggravation evidence and argument.
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United States v. Sittingbear, 54 M.J, 737 (2001)
Trial counsel’s sentencing argument was proper and not a veiled attempt to influence the military judge to sentence appellant for offenses for which he was not convicted. Even assuming error, no plain error in light of all the evidence.
-
- Capital Punishment
-
United States v. Parker, 65 M.J. 626 (2007)
As it applies to the imposition of the death penalty in the Navy and Marine Corps, the Court adopted the definition of mental retardation from the American Association on Intellectual and Developmental Disabilities. In determining whether an offender meets this definition, the Court will consider standardized IQ scores scaled by the SEM and the Flynn effect, evidence of the offender’s adaptive functioning ability, and evidence of the onset of mental retardation before the age of 18. The burden of persuasion to establish mental retardation rests with the offender by a preponderance of the evidence.
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- Credits
- Multiplicity for Sentencing
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United States v. Campbell, 66 M.J. 578 (24 April 2008, NMCCA #200700643)
Downloading child pornography to a government computer, transferring those same images to compact discs, and uploading those same images to a home computer, were considered multiplicious for sentencing.
-
- Instructions
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United States v. Tenney, 60 M.J. 838 (2005)
Maximum punishment for violation of federal bank fraud statute was correctly determined by military judge to be 30 years. There is no closely related military offense, thus, the maximum punishment allowed under the federal statute is the maximum punishment allowed in a court-martial.
-
- Lawfulness of Sentence
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United States v. Jenkins, 62 M.J. 582 (2005)
Appellant’s sentence was highly disparate from the sentence received closely related companion case. The difference, however, does not entitle Appellant to relief. Appellant’s companion contested the most serious offenses and was acquitted by a member’s panel.
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United States v. Stotler, 55 M.J. 610 (2001)
While the disposition of the appellant’s case and his co-conspirator are disparate, the leniency shown to his co-conspirator, by allowing him to be administratively discharged, does not necessarily flow to the appellant. Disparity that results from the bad judgment or inexperience of the convening authority does not necessarily entitle the appellant to relief.
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- Cruel and Unusual Punishment
- Forfeitures
- Generally
- Adjudged
- Mandatory View Resource
- Fine / Contingent Confinement
- Mandatory
- Evidence
- Post-Trial Hearings
- Authority for
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United States v. Sullivan, NMCCA 200302040 (2006) (published case with no lexis cite)
The MJ erroneously admitted a prior inconsistent statement as substantive evidence at trial. The MJ, then, attempted to correct the error by attaching an appellate exhibit to the record of trial entitled “Proceeding in Revision.” R.C.M. 1102 requires post-trial proceedings to correct errors be conducted in open court. The appellant was prejudiced by the error because the statement was critical evidence and the court was left with grave doubt whether the error sway the verdict.
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United States v. Crain, 63 M.J. 607 (2006)
The MJ failed to conduct a providence inquiry for one of the specifications in a mixed plea case. The MJ realized his error while authenticating the record and called a post-trial Art. 39a pursuant to R.C.M. 1102(b)(2). The post-trial hearing did not affect the announcement of findings, but simply provided the factual basis to support the appellant’s plea. The appellant suffered no prejudice by the post-trial proceeding.
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- Findings and Rulings
- DuBay / Factfinding Hearings
- Authority for
- Initial Review
- Generally
- Preparation of Record of Trial
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United States v. Godbee, 67 M.J. 532 (2008)
Although the original record of trial was lost, no relief is warranted when an authenticated duplicate of the original is submitted to this court for appellate review and the record of trial contains no omissions and no irregularities.
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United States v. Dearing, 60 M.J. 892 (2005) aff’d in part and rev’d in part (on other grounds),63 M.J. 78 (CAAF 2006)
Although demonstrative evidence used by the Government’s Expert should have been attached to the record of trial as appellate exhibits, the omission of two such documents is not reversible error. Although case law would suggest that the record is substantially verbatim, even assuming it is not, there is absolutely no prejudice to the appellant in the omission of the two documents.
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United States v. Henthorn, 58 M.J. 556 (2003)
Although the record is not complete, the error is harmless. In this case the omitted documents were a prosecution exhibit that contained images of child pornography. The military judge directed that the exhibit be sealed and provided to the Naval Criminal Investigative Service for safekeeping. Defense Counsel concurred in this procedure. The record is sufficiently complete to allow review of this record.
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United States v. Simmons, 54 M.J. 883 (2001)
Summarized transcript prepared because of difficulty in recording devices was not a substantial omission from the requirement of a verbatim record of trial. Where a summarized transcript was prepared that was a substantial omission, the government must demonstrate that the appellant was not prejudiced. The summarized portion that was considered a substantial omission was adequate for an informed review.
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United States v. Madigan, 54 M.J. 518 (2000)
Absence of Article 34, pre-trial advice letter from record of trial was error, however, absent some showing of actual prejudice, no relief is warranted.
-
- Authentication of Record of Trial
- Post-Trial Recommendation
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United States v. Mendoza, 65 M.J. 824 (2007)
It was not error for a convening authority to issue a new action in reliance on an 8-month old legal officer’s recommendation. However, the passage of time and particular post-trial circumstances of an appellant may in some cases create a presumption of staleness requiring a new SJAR / LOR and a new opportunity to submit clemency matters. To raise the presumption, the appellant must submit some evidence of his changed circumstances and assert, what, if any, material he would have provided to the convening authority if given a new opportunity.
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United States v. Blackett II, 62 M.J. 625 (2006)
A post-trial email from the CA to his SJA did not contain a “new matter” permitting comment by the TDC under R.C.M. 1106(f)(7). The record of trial contained the matters discussed by the CA in the subject email. And the CA’s comment on the TDC’s late submission of clemency matters was waived by the TDC’s failure to respond to the addendum. Finally, no prejudice was shown.
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United States v. Sanders, 61 M.J. 837 (2005)
Although the trial defense counsel failed to object to the SJAR’s failure to reflect all the Appellant’s awards and decoration, plain error exists requiring new post-trial processing where the omitted awards were combat related awards from a previous tour.
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United States v. Smith, 59 M.J. 604 (2003)
Omission of proof of service of the SJAR upon TDC is tested for prejudice. Additionally, the CA can approve a BCD without proof of service of the SJAR as the record of trial is substantially complete.
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United States v. Dedert, 54 M.J. 904 (2001)
There was no plain violation of the rule that prohibits trial counsel from preparing the SJAR when the trial counsel wrote a response to the appellant’s clemency request to the convening authority, which was attached to the SJAR and served upon trial defense counsel; however, it is better practice for the trial counsel not to do so.
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United States v. Ohree, 52 M.J. 742 (2000)
There is no error where SJAR fails to advise that witnesses testified against accused under grant of immunity. It is error for the SJAR to fail to include clemency recommendation of judge; however, no prejudice where DC did not object and where he otherwise pointed out the recommendation in his own clemency request.
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United States v. Ortiz, 52 M.J. 739 (2000)
SJA erred when he failed to summarize service of accused and instead advised that character of service was “not applicable.” However, because defense counsel did not object cannot establish plain error at this special court-martial.
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United States v. Bell, 60 M.J. 682 (2004)
SJA cannot “pocket veto” a clemency request for early release from confinement by delaying forwarding it until the convening authority’s action is ready to be taken.
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- Post-Trial Submissions
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United States v. Mendoza, 65 M.J. 824 (2007)
It was not error for a convening authority to issue a new action in reliance on an 8-month old legal officer’s recommendation. However, the passage of time and particular post-trial circumstances of an appellant may in some cases create a presumption of staleness requiring a new SJAR / LOR and a new opportunity to submit clemency matters. To raise the presumption, the appellant must submit some evidence of his changed circumstances and assert, what, if any, material he would have provided to the convening authority if given a new opportunity.
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- Action
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United States v. Mendoza, 65 M.J. 824 (2007)
It was not error for a convening authority to issue a new action in reliance on an 8-month old legal officer’s recommendation. However, the passage of time and particular post-trial circumstances of an appellant may in some cases create a presumption of staleness requiring a new SJAR / LOR and a new opportunity to submit clemency matters. To raise the presumption, the appellant must submit some evidence of his changed circumstances and assert, what, if any, material he would have provided to the convening authority if given a new opportunity.
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United States v. Hudgens, 54 M.J. 932 (2001)
Convening Authority erred by attempting to suspend confinement that had already run by operation of law.
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United States v. Steward, 55 M.J. 630 (2001)
Appellant’s pretrial agreement [PTA] called for the suspension of confinement in excess of 150 days. At trial he was awarded 5 months confinement. The SJA advised the convening authority that the PTA had no effect and following that advice, the convening authority did not suspend any confinement. Failing to suspend any confinement was error because, under the facts of this case, the 5 months the appellant served would have been equivalent to 152 days. We provide relief by only approving forfeitures for 3 months as opposed to the 5 months approved by the convening authority.
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United States v. Klein, 55 M.J. 752 (2001)
Premature action by the convening authority does not entitle the appellant to relief absent prejudicial error. When the original action by the convening authority suspended the adjudged BCD, the subsequent action taken after the case has been within the appellate court’s jurisdiction which indicated a mistaken suspension of the BCD is null and void. The original action was not ambiguous, incomplete, or inaccurate (in the sense found in the MCM), therefore the original action, suspending the BCD, is the only legally effective action in this case.
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- Clemency
- Deferral
- Revocation of Suspensions
- Execution of Sentences
- Writs and Interlocutory Appeals
- Generally
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Ponder v. Stone, 54 M.J. 613 (2000)
Issuance of writ of mandamus to compel the MJ to reverse the ruling on pre-trial motions that indicated that as a matter of law the order was lawful and that prevented petitioner from introducing evidence of the safety and necessity of the anthrax vaccine, is not necessary or appropriate. Petitioner has not shown that the MJ’s ruling was so contrary to statute, settled case law, or valid military regulation.
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Diaz v. United States, 54 M.J. 880 (2000)
Petitioner seeks reopening Article 32 hearing by way of an extraordinary writ. No relief granted where charges which were investigated an Article 32, UCMJ hearing and referred to general courts-martial, were later dismissed because of a technical defect in the original preferral of charges (accuser was not authorized to administer oath) and then were re-preferred and re-referred to the same general court-martial. To require a new Article 32 hearing would exalt form over substance.
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- Collateral Attack
- Appropriateness of Forum
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Taylor v. Garaffa, 57 M.J. 645 (2002)
The MJ did not err when he denied the appellant’s motion to limit the jurisdiction of his special court-martial to impose punishment. Petitioner’s offenses were alleged to have occurred before 15 May 2002, the date that the jurisdictional maximum sentenced a special court-martial may impose increased to 1 year of confinement, reduction to E-1, 2/3 forfeitures for 1 year, and a BCD. Petitioner’s trial was convened after 15 May 2002. It does not violate the ex post facto clause of the Constitution.
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Fisher v. Commander, Army Regional Confinement Facility and the United States, 56 M.J. 691 (2001)
The petitioner’s original delivery to the State of California was accomplished after he had been tried and convicted by a military court-martial. It was accomplished pursuant to Article 14 of the UCMJ, vice the Interstate Agreement on Detainers Act, 18 U.S.C. Appendix, therefore his military and civilian sentences ran consecutively as opposed to concurrently. In addition, the issuance of a discharge certificate (DD-214) pursuant to final approval of the military court-martial, while the petitioner was in custody of the State of California, did not deprive the military of jurisdiction to reacquire him, after completion of his civilian sentence to prison, to serve the unexecuted portions of his military sentence.
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- All Writs Act View Resource
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United States v. Thompson, 60 M.J. 880 (2005)
On writ of error coram nobis we set aside our earlier decision and stay the proceeding. In this case the Appellant was diagnosed with schizophrenia after his release from confinement, unbeknownst to appellate counsel and this court, prior to our initial decision. The Navy conducted two RCM 706 boards per this court’s order and both doctors confirmed mental disease present in Appellant. As Appellant was not able to assist his appellate defense attorney in his appeal and cannot assist at this time the case is indefinitely abated pending changes in the Appellant’s mental health.
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- Article 62 Appeal
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United States v. Wuterich, 66 M.J. 685 (2008), vacated and remanded, 2008 CAAF LEXIS 1208 (C.A.A.F. Nov. 17, 2008)
In reviewing a Government interlocutory appeal, the Court can only act on matters of law, and may not make findings of fact.
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United States v. Miller, 66 M.J. 571 (2008)
In reviewing a government interlocutory appeal, NMCCA may act only on matters of law.
NMCCA is bound by the military judge’s findings of fact, unless they are unsupported by the evidence of record or are clearly erroneous.
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United States v. Weston, 66 M.J. 544 (2008)(en banc)
Search of the appellant’s residence was reasonable under the Fourth Amendment, where the appellant’s wife consented to the search and the appellant did not. Here, there was no evidence that law enforcement agents purposefully drew the appellant away from the residence in order to deny him the opportunity to object to the search, and there was no evidence that law enforcement separated the appellant from his wife for an improper ulterior motive. Even assuming that the search was illegal and that the exclusionary rule should apply, the military judge correctly held that the evidence seized would in any case be admissible under the inevitable discovery doctrine.
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United States v. Davis, 62 M.J. 533 (2005)
Military judge erred when he terminated proceedings due to lack of personal jurisdiction. The case was sent back for a rehearing on sentence by our superior court, but before the rehearing took place the Navy administratively discharged Appellant for his misconduct. The doctrine of continuing jurisdiction indicates that the appellate court, once jurisdiction has been conferred, retains jurisdiction until the conclusion of appellate review. That same doctrine indicates that the trial court retained jurisdiction, in carrying out the appellate courts mandate of conducting a rehearing.
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United States v. Jones, 60 M.J. 917 (2005)
The military judge erred in dismissing the charges for improper referral. The appellant no longer worked within the chain of command of the GCMCA where the offenses occurred. The new GCMCA did not want to pursue court-martial charges. The trial was convened by the original GCMCA. The new GCMCA did indicate that he would make Appellant available if the old GCMCA did convene charges. The old GCMCA was a proper CA.
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United States v. Greene, 56 M.J. 817 (2002)
The Court, in a case reviewed pursuant to Art. 62, UCMJ, reversed the military judge’s ruling, to suppress evidence of the images of child pornography found on the accused’s computer. After receiving information that the accused possessed images of child pornography in his barracks room, the NCIS asked for consent to search his room. The consent form indicated that the accused gave the agents consent to search his room on that date and to seize evidence. The agents found no evidence of child pornography, and did not search the accused’s computer in the room. Rather they shut it down and brought it to a lab where a agents later conducted his analysis of the computer and its contents. The military judge ruled that the accused gave the agents consent to search only on the day in question, and that its subsequent analysis of the computer violated the scope of the search that the accused consented to. The court held that the military judge erred in his application of the law, and the plain reading of the entire consent form and the logistics of a computer search indicate that the agents acted reasonably and within the scope of consent.
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United States v. Cooper, 56 M.J. 808 (2002)
The Court, on an appeal by the Government pursuant to Art. 62, UCMJ, reverses the military judge’s ruling that the Government violated the accused’s right to a speedy trial, pursuant to Art. 10, UCMJ. The military judge erroneously attributed periods of delay to the Government, and periods of delay that occurred before arraignment were no unreasonable given the nature and complexity of the case.
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United States v. Santiago, 56 M.J. 610 (2001)
The Government’s appeal, appealing the military judge’s ruling that suppressed the testimony of all treating mental health providers, pursuant to MRE 513, is dismissed as untimely. Initially the government timely gave notice to appeal the military judge’s decision, however, it withdrew this notice. Later, at trial, it requested the military judge to reconsider his ruling. The military judge reaffirmed his decision. In a later motion, the Government moved to introduce the testimonies of other physicians who assisted the primary care providers. The military judge found these doctors were covered by his original decision and denied the Government’s motion. Thereafter, the Government provided notice to appeal the last decision.
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- Generally
- Appeals
- Generally
- Courts of Criminal Appeals
- Generally
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United States v. Castillo, 59 M.J. 600 (2003)
When the Court of Criminal Appeals remands a case to the convening authority, it language of remand is not merely suggestive in nature. Here the convening authority, on advice from his SJA, failed to comply with the remand order of this court. That is clear error.
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- Factual sufficiency View Resource
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United States v. Morgan, 65 M.J. 616 (2007)
Statements made by appellant to civilian authorities during a murder investigation were not “official” within the meaning of Art. 107 where the circumstances leading up to and surrounding appellant’s statements did not bear a clear and direct relationship to his military duties and did not reflect a substantial military interest in the civilian police investigation.
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- Sentence appropriateness
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United States v. Gaines, 61 M.J. 689 (2005)
Where the convening authority previously remitted some confinement in his action, this court may consider all confinement when conducting a sentence reassessment. The CA did not disapprove the portion of confinement, thus he approved the portion remitted. This result is different if Navy Clemency and Parole remits punishment before this court acts. See Dedert, 54 M.J. 904 (NMCCA 2001).
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United States v. Smith, 61 M.J. 696 (2005)
Forfeiture of $1,000 per month for a period of 240 months is not excessive within the meaning of the Excessive Fines Clause of the Eighth Amendment. The Appellant is retirement eligible and the forfeitures were appropriate based upon his offenses of running pornographic Web sites for profit and failing to comply with age documentation requirements, amongst other offenses.
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United States v. Hundley, 56 M.J. 858 (2002)
BCD is appropriate for a 3 month long absence. In addition, his request for a punitive discharge is indicative of his lack of rehabilitative potential.
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United States v. Barnes, 57 M.J. 626 (2002)
Sentence which includes an unsuspended BCD is not inappropriately severe for a one-time marijuana use by an otherwise outstanding Marine.
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United States v. Dedert, 54 M.J. 904 (2001)
Prior to review, the Naval Clemency and Parole Board mitigated the approved dishonorable discharge to a bad-conduct discharge, therefore, we may only review the sentence as mitigated by the NCPB. We find that confinement for 2 years was an inappropriately severe sentence given the offender and the offenses.
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United States v. Morris, 54 M.J. 898 (2001)
A retiree or member of the Fleet and Fleet Marine Corps Reserves cannot be reduced in rank because jurisdiction is based upon the status of being a member of those units and not on being called back to active duty.
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United States v. Stotler, 55 M.J. 610 (2001)
While the disposition of the appellant’s case and his con-conspirator are disparate, the leniency shown to his co-conspirator, by allowing him to be administratively discharged, does not necessarily flow to the appellant. Disparity that results from the bad judgment or inexperience of the convening authority does not necessarily entitle the appellant to relief.
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United States v. Hollis, 54 M.J. 809 (2000)
Sentence to confinement for 22 years and a DD was not inappropriately severe for multiple sexual crimes against appellant’s daughters, even considering his 14 years of service.
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United States v. Madigan, 54 M.J. 518 (2000)
Sentence to a dishonorable discharge was inappropriately severe for receipt and possession of child pornography.
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United States v. Oxendine, 54 M.J. 508 (2000)
Sentence to six years of confinement was inappropriately severe, given the appellant’s character and circumstances surrounding the involuntary manslaughter.
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- Generally
- Court of Appeals for the Armed Forces
- Cumulative Error
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United States v. Abdirahman, 66 M.J. 668 (2008)
Where a nurse practitioner improperly testified as an expert on rape trauma, the military judge improperly admitted evidence under the excited utterance exception to the rule against hearsay, and the military judge allowed a government witness to improperly bolster the alleged victim’s character for truthfulness, the court found cumulative error requiring the findings of guilty and the sentence to be set aside.
-
- Invited Error / Open Door
- Harmless / Prejudicial Error
- Preservation of Error / Plain Error
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United States v. Barnes, 60 M.J. 950 (2005)
Normally the Appellant waives the issue when he pleads guilty, however in this case the military judge announced that although he ruled against the Appellant on the motion the issue was preserved for appeal and thus became the law of the case.
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United States v. Bart, 61 M.J. 578 (2005)
Appellant may challenge constitutionality of sodomy conviction despite pleading guilty.
-
- Grostefon
- Law of the Case
-
United States v. Barnes, 60 M.J. 950 (2005)
Normally the Appellant waives the issue when he pleads guilty, however in this case the military judge announced that although he ruled against the Appellant on the motion the issue was preserved for appeal and thus became the law of the case.
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United States v. Jenkins, 62 M.J. 582 (2005)
The law of the case indicates that we may not review a conviction that a previous panel of this court set-aside and dismissed.
-
- Remedies
- Generally
- DuBay / Factfinding
-
United States v. Diaz, 61 M.J. 594 (2005)
Appellant’s attorneys were effective and conflict free. The post-trial DuBay hearing findings of fact, which were not clearly erroneous, indicate that no actual conflict of interest existed (counsel represented a petty officer in an unrelated court-martial who was a victim of the Appellant’s in uncharged misconduct) and that the attorneys had a rationale basis for not presenting good military character evidence.
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- Evidentiary hearing
- Rehearing
- Remand
- Sentence reassessment
- Reconsideration
- Scope of Review
- Standards of Review, Burdens, etc.
-
United States v. Walker, 66 M.J. 721 (2008)
The Court reviews all death-penalty cases by testing the result of the court-martial against the whole record to determine whether to affirm the findings and sentence.
-
United States v. Holmes, 65 M.J. 684 (2007)
The proper standard of review for the providence of a guilty plea is abuse of discretion when the issue is whether a factual basis exists to support the plea.
-
- Waiver
- Petition for New Trial
- Generally
- Newly Discovered Evidence
-
United States v. Evans, 55 M.J. 732 (2001)
The “newly discovered evidence” which the appellant bases his request for a new trial is not sufficiently believable to make a more favorable result probable.
-
- Appellate Review
- Pretrial
- Miscellaneous Matters
- Command Influence
- Generally
-
United States v. Harris, 66 M.J. 781 (2008)
The Court found that the evidence shows beyond a reasonable doubt that appellant’s allegations of UCI through witness intimidation were not substantiated where a defense witness, who was a friend of the appellant, initially admitted in an affidavit to putting methamphetamine in the appellant’s drink, but later recanted. The military judge held that the Government attorney did not unlawfully coerce the witness into recanting. Rather, the witness recanted because the statement was false. The Court noted that the Government attorney properly asked whether the witness wanted an attorney present prior to discussing the affidavit, and that the question did not amount to a threat. The Court found that the prosecutor’s forwarding of the affidavit to local law enforcement was proper, and did not amount to a threat, because the affidavit contained admissions of criminal conduct. The Court noted that the Government attorney did not ask local law enforcement to coerce the witness into recanting, and that the local law enforcement officer accurately advised the witness that the affidavit constituted an admission of criminal conduct. Finally, the Court noted that the witness admitted that the appellant offered the witness money to make the false statement.
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- Members
-
United States v. Harvey, 60 M.J. 611 (2004)
The mere presence of the convening authority in the court room during closing arguments and the trial defense counsel’s assertion that members were looking over his shoulder without more is not sufficient to raise the initial threshold of unlawful command influence. Trial defense counsel declined an opportunity to voir dire the members and had no evidence that three of the four members even knew who the convening authority was. Reversed by CAAF on the basis that it was error not to find the defense met its initial burden and not to require the Government to show either that no unlawful command influence existed, or that it did not affect the proceedings, and also on post-trial delay grounds. United States v. Harvey, 64 M.J. 13 (CAAF 2005).
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United States v. Evans, 55 M.J. 732, (2001)
Appellant has failed to raise the issue of unlawful command influence by his generalized, unsupported claims of collusion between the trial counsel and the convening authority in selecting the panel members.
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- Chain of Command
- Burdens
- Generally
- Speedy Trial
- Generally
-
United States v. Evans, 55 M.J. 732 (2001)
The appellant’s arraignment was not a “sham” for the purposes of speedy trial even though the Government still had not received DNA results. The Government is not required to have its best case ready to proceed to trial and may perfect its case in the interim.
-
United States v. Bruci, 52 M.J. 750 (2000)
When the accused enters unconditional guilty plea, he waives appellate review of speedy trial issue litigated below.
-
- Rule for Courts-Martial 707
-
United States v. Miller, 66 M.J. 571 (2008)
Even accepting the military judge’s arbitrary and clearly erroneous determination that 15 days were reasonably required for appellant’s R.C.M. 706 mental status examination, the appellee was brought to trial on day 118 (after factoring in excludable delay), and thus there was no R.C.M. 707 violation.
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United States v. Samuels, 65 M.J. 612 (2007)
The Court dismissed an indecent assault charge when the appellant’s arraignment took place more than 120 days after the charge was preferred, the CA withdrew the charge, but did not dismiss it, and then re-preferred it, which did not reset the speedy trial clock for purposes of R.C.M. 707.
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United States v. Dubouchet, 63 M.J. 586 (2006)
The appellant was arraigned 145 days after confinement, and pled guilty. Pursuant to R.C.M. 707(e) the right to a trial within 120 days was waived by his plea of guilty. The 6th Amendment right to a speedy trial is also waived by a voluntary guilty plea. An un-litigated Article 10 speedy trial right is also waived by an unconditional guilty plea. Trial defense counsel’s failure to file a speedy trial motion was not ineffective because a speedy trial is not always in the best interests of the defense, and, in fact, delay may be a trial tactic.
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United States v. Blackett II, 62 M.J. 625 (2006)
After findings and before sentencing, the appellant assaulted a witness in front of the members of his court-martial. The MJ declared a mistrial, and, then, 138 days elapsed between that hearing and the appellant’s next Art. 39(a) session. R.C.M. 707 applies to mistrials declared solely for sentencing proceedings, which the government violated; however, no harm resulted so no relief was warranted.
-
- Article 10
-
United States v. Miller, 66 M.J. 571 (2008)
Article 10 violation where appellant spent 140 days in pretrial confinement prior to arraignment at a special court-martial, and the Government did not act with reasonable diligence in bringing the case to trial, even though the Court noted an absence of a demand by the appellee for a speedy trial or a showing of prejudice. Here, the Government did not meet its burden of demonstrating that it diligently sought to follow the proceedings of appellee’s R.C.M. 706 mental status examination or to expedite the examination when it obviously lagged.
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United States v. Dubouchet, 63 M.J. 586 (2006)
The appellant was arraigned 145 days after confinement, and pled guilty. Pursuant to R.C.M. 707(e) the right to a trial within 120 days was waived by his plea of guilty. The 6th Amendment right to a speedy trial is also waived by a voluntary guilty plea. An un-litigated Article 10 speedy trial right is also waived by an unconditional guilty plea. Trial defense counsel’s failure to file a speedy trial motion was not ineffective because a speedy trial is not always in the best interests of the defense, and, in fact, delay may be a trial tactic.
-
- Sixth Amendment Right to Speedy Trial
-
United States v. Dubouchet, 63 M.J. 586 (2006)
The appellant was arraigned 145 days after confinement, and pled guilty. Pursuant to R.C.M. 707(e) the right to a trial within 120 days was waived by his plea of guilty. The 6th Amendment right to a speedy trial is also waived by a voluntary guilty plea. An un-litigated Article 10 speedy trial right is also waived by an unconditional guilty plea. Trial defense counsel’s failure to file a speedy trial motion was not ineffective because a speedy trial is not always in the best interests of the defense, and, in fact, delay may be a trial tactic.
-
- Post-Trial
-
United States v. Bush, 67 M.J. 508 (2008)(en banc)
En banc Court held that although the appellant’s due process rights were violated as a result of an over seven-year delay in reviewing the 143-page guilty plea record of trial, the appellant failed to meet his burden of establishing employment prejudice. In the absence of specific prejudice, the Government met its burden to demonstrate that the error was harmless beyond a reasonable doubt.
Originally, the NMCCA 3-judge panel found that the appellant satisfied the prejudice prong of the 4-factor Moreno test. United States v. Bush, 66 M.J. 541 (NMCCA 11 March 2008). The appellant submitted a declaration, which the government did not rebut, that stated the appellant was denied a job because he lacked his final discharge papers (DD-214). Following the NMCCA 3-panel decision in Bush, CAAF issued its opinion in United States v. Allende, 66 M.J. 142 (C.A.A.F. 2008). Upon reconsideration, NMCCA, sitting en banc, held that while the appellant provided an adequately detailed declaration articulating prejudice to his employment opportunities, the appellant did not meet his additional burden to provide corroborating evidence of specific employment prejudice or an explanation of why such evidence could not be obtained, as required by Allende.
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United States v. Samuels, 65 M.J. 612 (2007)
The Court held appellant was denied his right to speedy post-trial review when it took the SJA’s office 1002 days to prepare and sign the SJA’s recommendation, which accounted for virtually all of the delay in the case, and was delay for which there was no explanation.
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United States v. Bredschneider, 65 M.J. 739 (2007)
Appellant was denied the right to due process, even without a specific showing of prejudice, due to a 7-year delay in post-trial processing. Although not a Barker-type due process violation, the Court held that a delay of 7 years for a 77-page case would adversely affect the public’s perception of the military justice system and denied appellant the right to speedy post-trial review.
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United States v. Canchola, 63 M.J. 649 (2006)
The appellant’s case, a two year delay to complete the SJAR, two year delay to complete the CA’s action, eight months to file a brief with the court, and four months for the Government’s response brief, warranted relief under Art. 66(c). No due process violation occurred, and no Moreno presumption applied.
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United States v. Adams, 65 M.J. 552 (2006)
The appellant’s 1841 day delay between his trial and docketing with this court was a due process violation. The presumptive prejudice threshold was satisfied; thus, triggering the Barker v. Wingo four factor analysis. Balancing those four factors, even absent prejudice, was a due process violation. However, the due process violation was harmless beyond a reasonable doubt because the appellant suffered no actual harm.
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United States v. Brown, 62 M.J. 602 (2005)
Court set aside the Appellant’s BCD due to unreasonable and unexplained post-trial delay under Article 66(c). The court considered a non-exhaustive list of 7 factors for determining whether delay warrants relief.
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United States v. Clark, 61 M.J. 707 (2005)
Appellant was prejudiced by post trial delay, in part because one of his claims had merit desiring of relief. Court also set aside one charge and reduced confinement by 4 years and down-graded DD to BCD.
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United States v. Pietsch, 61 M.J. 660 (2005)
In a mix plea case the contested convictions must be set aside due to unreasonable and unexplained post-trial delay. The appellant has suffered prejudice because she raises an ineffective assistance of counsel claim and detailed trial defense counsel cannot recollect whether he did or did not advise his client regarding testifying at trial.
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United States v. Bell, 60 M.J. 682 (2004)
SJA cannot “pocket veto” a clemency request for early release from confinement by delaying forwarding it until the convening authority’s action is ready to be taken.
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United States v. Toohey, 60 M.J. 703 (2004)
Convening authority’s action was not taken until 644 days after conclusion of trial. The Navy-Marine Corps Court of Criminal Appeals (NMCCA) did not receive the record of trial for another 146 days. Case docketed at NMCCA on 11 October 2000 and all pleadings were filed by 6 February 2003, decision was issued 30 September 2004. Appellant complained of post trial delay as to both the delay attributable to the convening authority and to the processing of his appeal. Appellant repeatedly asserted his right to speed post trial processing. Appellant filed a petition for extraordinary relief with the Court of Appeals for the Armed Forces (CAAF) on 18 February 2004 and CAAF issued a decision on 2 July 2004 directing NMCCA to render a decision as early as possible. United States v. Toohey, 60 M.J. 100 (CAAF 2004). CAAF determined in its decision that the delay of nearly 6 years satisfied the length of delay criterion under Barker v. Wingo, 407 U.S. 514, 530 (1972) triggering a due process review. Appellant did request 11 enlargements of time from NMCCA and took almost a year and a half to file his initial brief, followed by another two months to file a reply brief. 580 days of the delay on appeal are attributable to appellant, the remaining delays resulted from the number of cases reviewed by NMCCA combined with the complexity and volume of the pleadings and record of trial in this case. Appellant must still show prejudice that is more than speculative to get relief. Delay in review by Naval Clemency and Parole Board (NCPB) because of delay in convening authority’s action is speculative, particularly where appellant does not state whether NCPB granted any relief, or argue that they might have if they had been able to review his case earlier. Also, not having access to a law library because appellant could not be transferred from the Marine Corps Base Brig at Camp Lejeune to Fort Leavenworth while awaiting the convening authority’s action is not sufficient prejudice where appellant researched and drafted a 38 page brief of his own that he submitted contemporaneously with his appellate defense counsel. Appellant’s assertion of general prejudice without specifics was insufficient to grant relief. No relief is granted under Article 66(c) either because such relief should only be granted “under the most extraordinary of circumstances.” CAAF found this to be the incorrect standard for review under Article 66(c) and that the delay in this case was so egregious as to undermine public confidence in the court-martial process and returned the case to NMCCA for sentence relief. United States v. Toohey, 63 M.J. 353 (CAAF 2006).
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United States v. Khamsouk, 58 M.J. 560 (2003)
Although this court has the ability to grant relief for unreasonable and unexplained post-trial delay, even in the absence of prejudice, we decline to do so in this case. Here, the majority of the delay is attributable to the time the military judge took to authenticate the record of trial. Although the time he had the case appears to be excessive, we do not hold the Government responsible for the actions of the independent judiciary.
-
- Generally
- Manual for Courts-Martial
- Generally
- Force and Effect
- Multiplicity and Lesser Included Offenses
- Generally
- Lesser Included Offenses
- Multiplicity for Findings
-
United States v Melbourne, 58 M.J. 682 (2003)
We provide no relief to appellant where he claims that his convictions for reckless driving resulting in death, drunken driving resulting in death, and negligent homicide are multiplicious or an unreasonable multiplication of charges. First, he made no objection at trial, so the multiplicity issue is waived unless the offenses are facially duplicative. We do not believe that they are, since each involves elements not in the others. Even if we were to assume them to be, the military judge considered the aggravating element, the death, multiplicious for sentencing. Additionally, if we were to reassess the sentence, we would have given him a sentence at least the sentence as approved below. Lastly, because the military judge considered the one consistent element, multiplicious for sentencing, we do not find an unreasonable multiplication of charges.
-
United States v. Oliver, 56 M.J. 695 (2001)
Charging the making of a false claim and the presenting of a false claim is multiplicious. There is no unreasonable multiplication of charges, however, for the making / presenting of a false claim and a separate offense of using an altered receipt in support of that false claim.
-
United States v. Balcarczyk, 53 M.J. 809 (2000)
Discussing multiplicity issues for violations of sexual harassment and corresponding sexual misconduct offenses.
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United States v. Lacy, 53 M.J. 509 (2000)
No multiplicity where accused twice charge for exposing himself, inter alia, while showing a pornographic video to two children (discussion of “unit of prosecution”).
-
United States v. McGrew, 53 M.J. 522 (2000)
Unauthorized absence multiplicious with missing movement on these facts.
-
United States v. Hinkle, 54 M.J. 680 (2000)
Charges of UA and violating an order to go to the CCU, when the period of UA began when the appellant was supposed to be at the CCU were not multiplicious.
-
- Multiplicity for Sentencing
- Unreasonable Multiplication of Charges
-
United States v. Campbell, 66 M.J. 578 (2008)
Downloading child pornography to a government computer, transferring those same images to compact discs, and uploading those same images to a home computer, were not considered an unreasonable multiplication of charges because the possession of separate media containing contraband images provides an independent basis for each charge.
-
United States v. Dubouchet, 63 M.J. 586 (2006)
Two specifications of opening, secreting, and stealing mail were an unreasonable multiplication of charges. In balancing the five Quiroz factors, the appellant failed to object at trial, and no prosecutorial overreaching existed. However, the even though the thefts occurred against two different victims, the thefts were not aimed at separate acts because they occurred at the same time and place. And the additional conviction increased the appellant’s punitive exposure, even though the forum was a special courts-martial.
-
United States v. Martinez Maldonado, 62 M.J. 697 (2006)
Wrongful appropriation of a vehicle, and larceny of a digital camera from within the same vehicle, did not constitute an unreasonable multiplication of charges under Quiroz. The appellant failed to object at trial, and no evidence of prosecutorial overreaching existed. Further, the wrongful appropriation of a vehicle, and theft of a digital camera, minutes later, did not misrepresent or exaggerates the appellant’s criminality, or unreasonably increases his punitive exposure.
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United States v. Mazer, 62 M.J. 571 (2005)
The Appellant’s multiple specifications involving lewd internet chats with an NCIS agent whom the Appellant believed to be a minor are not an unreasonable multiplication of charges where the chats occurred on different dates or, if on the same date, were a separate and distinct chat from the other chat on that date.
-
United States v. Christian, 61 M.J. 560 (2005)
Charges of indecent language and assault consummated by a battery were unreasonably multiplied by convictions for a sexual harassment type order violation when the acts that constitute the specification of sexual harassment are the exact acts that constitute the indecent language and assault specifications.
-
United States v. Oestmann, 60 M.J. 660 (2004)
Wharton’s Rule holds that where two parties agree to commit an offense requiring concerted action and those two parties are the only two parties to commit the ultimate offense, conspiracy should not be charged. Examples of offenses requiring such concerted action are adultery, dueling and bribery. Here there was a charged conspiracy to possess hashish with intent to distribute it only to the other member of the conspiracy. As a result, Wharton’s Rule applies. Remanded by CAAF on other grounds.
-
United States v. Quiroz, 56 M.J. 583 (2002)
We reaffirm our previous decision, noting that the factor that our superior Court expressed reservations about, that being: whether the number of charges unreasonably increase the appellant’s punitive exposure. There is substantial dissent.
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United States v. Chambers, 54M.J. 834 (2001)
It was an unreasonable multiplication of charges to charge negligent homicide and drunk driving with the resulting fatality as an aggravating offense of the drunk driving offense. Affirm only the negligent homicide and drunk driving offense without the aggravating element.
-
United States v. Lentz, 54 M.J. 818 (2001)
No unreasonable multiplication of charges where prosecution charges assaults on 3 children with 6 specifications based upon location of offense (divers occasions in Iceland and Virginia).
-
United States v. Oliver, 56 M.J. 695 (2001)
Charging the making of a false claim and the presenting of a false claim is multiplicious. There is no unreasonable multiplication of charges, however, for the making / presenting of a false claim and a separate offense of using an altered receipt in support of that false claim.
-
United States v. Roberts, 55 M.J. 724 (2001)
There was no unreasonable multiplication of charges or multiplicity in the charging of wrongful introduction, wrongful use, and wrongful distribution of a drug on the same ship, given the fact that the introduction occurred 10 days before the use and distribution.
-
United States v. Quiroz, 53 M.J. 600 (2000)
The unreasonable multiplication of charges is distinct from multiplicity; case provides factors for analyzing claims of unreasonable multiplication of charges and holds that two separate specifications of possessing C-4 are an unreasonable multiplication of charges.
-
United States v. Hinkle, 54 M.J. 680 (2000)
21 days UA which began when appellant violated an order to go to the CCU was an UMC. As such, the gravamen of the offense was the UA, not the flouting of an order, therefore no punitive discharge was authorized.
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United States v. Galante, 53 M.J. 709 (2000)
Forgery specifications not unreasonably multiplied.
-
United States v. Oxendine, 54 M.J. 508 (2000)
No UMC for separately charging appellant with disorder, which was part of the acts that lead to his involuntary manslaughter conviction.
-
- Tests
- Nonjudicial Punishment (Article 15)
- Generally
- Charges Based on Prior Nonjudicial Punishment
-
United States v. Edwards, 54 M.J. 761 (2000)
Appellant is absolutely entitled to credit for punishment for the previous punishment of the same offense at NJP.
-
- Statutes, Treaties, Regulations, Executive Orders, Directives, etc.
- Generally
- United States Code
- State Law / Statutes
- Regulations
- Executive Orders
- Judicial Review
- Generally
- Standing
- Political Questions
- Administrative Issues
- Stare Decisis
- Advisory Opinion
- Professional Responsibility / Ethics
- Generally
- Conflicts of Interest
- Pretrial Publicity
- Generally
- Command Influence
(Last Updated September 5, 2008)