Court-Martial Military Defense Under UCMJ

NMCCA has pumped out quite a few opinions recently.  The trend of affirming GP Fosler cases appears to continue.  And as to the remanded Fosler GP trailers you will be seeing this language.

Regarding the remanded question, we again affirm the findings of guilty, pursuant to the appellant’s pleas, for the reasons set for in United States v. Hackler, ___ M.J. ___  (N.M.Ct.Crim.App. 22 Dec 2011).

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No. 10-0649/AF.  U.S. v. Dean E. THOMPSON. CCA 37380. Review granted on the following issue:

WHETHER APPELLANT RECEIVED POST-TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL AND APPELLANT HAS MADE A COLORABLE SHOWING OF POSSIBLE PREJUDICE.

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to the granted issue. At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2006). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006), shall apply.

Here’s the prior history from AFCCA’s decision on remand.  

In a published decision, issued  3 June 2010, [AFCCA} affirmed the approved findings and sentence.   United States v. Thompson,  69 M.J. 516 (A.F. Ct. Crim. App.), rev’d, 69 M.J. 456 (C.A.A.F. 2010) (mem.).[1.][2.]   By decision issued  20 December 2010, the  United States  Court of Appeals for the Armed Forces (C.A.A.F.) found that we failed to apply the “colorable showing of possible prejudice” standard when determining whether the appellant received ineffective assistance of counsel.  Thompson, 69 M.J. at 456.  As a result, our superior court  vacated our decision and remanded  the case to this Court  for  further review.  Finding no material prejudice to the appellant, we affirm the findings and the sentence.

The case involves the issue or doctrine of “cumulative error.”

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[1.]  No. 10-0649/AF. U.S. v. Dean E. THOMPSON. CCA 37380. On further consideration of the granted issue (__ M.J. __, Daily Journal of October 6, 2010) and the briefs of the parties, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is vacated, and the case is hereby remanded to that court for further review, applying the “colorable showing of possible prejudice” standard in United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999), in light ofStrickland v. Washington, 466 U.S. 668 (1984).

[2.]  No. 10-0649/AF. U.S. v. Dean E. THOMPSON. CCA 37380. Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY APPLYING AN INCORRECT STANDARD OF REVIEW FOR PREJUDICE ARISING FROM POST-TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL.

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On cross-examination there are various ways to impeach a witness.  In this day and age there can be quite a bit of information available on line, usually through social media.

But a great potential source is the witnesses record book, which is why it should always be reviewed prior to trial.

Enlistment documents.  Did the person give truthful information under oath during enlistment – about criminal charges, or mental health issues, or medical issues.

Drug abuse statements.  Did the person give truthful information under oath.

SF 86.  Did the person give truthful information under oath, or is there something inconsistent with other record documents.   A common one is a listing of prior service drug use which conflicts with the enlistment documents; thus you have a fraudulent enlistment.  Now it’s common to say the recruiter told them to lie.  Fine, now you have two crimes going to truthfulness, the false statement under oath at enlistment and a conspiracy with the recruiter to commit a fraudulent enlistment.

Overseas screening documents.

Applications for tuition assistance.

Applications for special programs or assignments.

Of course, the TC should be giving you this information if it exists.

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Here is a piece by Bryant Jordan on Military.com with more on the recent “politicking” of a uniformed Reserve Soldier.

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Now the Iowa primary is done, we are off to the races for a new election year.

Here’s a reminder, from Stars & Stripes, that politicking in uniform is not allowed.

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Courtesy of federalevidence here is their list of potential significant evidence issues affecting criminal cases this coming year.

1. Supreme Court Watch: Williams v. Illinois: Confrontation Clause – Pending Decisions
2. Confrontation Clause: More Notice and Demand Rules?
3. Supreme Court Watch Open Issue: Confrontation Clause – Resolving An Open Issue on the Scope Of Dying Declarations
4. Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause
5. Circuit Split: Admission Of Pre-Miranda Silence
6. Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted?
7. More Judicial Criticism of the “Inextricable Intertwinement" Theory
8. Rule Amendments: “Restyling” Federal Rules of Evidence
9. Pending Rule Amendment: FRE 803(10) – Absence of Public Record
10. Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings

On item 8., which will depend on how the President “adopts” the restyling.  Interesting that there may be issues surrounding implementation of the restyled rules.

The FRE were “restyled” by amendments effective December 1, 2011. The amendments were intended to make the rules easier to use and were not intended to result in substantive changes. As the restyled rules are applied, one question will be whether language differences in the new version result over time in substantive modifications.

On item 7., on how 404(b) is applied.  This is an issue I frequently raise when the prosecution makes was is termed a ‘talismanic incantation,’ which lacks specificity to the offenses charged argument for admissibility.

Nearly every circuit has recognized the "inextricable intertwinement" theory (or “inextricably intertwined” doctrine). Several circuits have cautioned about admission of uncharged evidence in a case as part of the "inextricably intertwined" exception to FRE 404(b). Recently, this doctrine has come under increasing judicial criticism. . . .

SeeUnited States v. Gorman, 613 F.3d 711 (7th Cir. 2010) (“[T]he inextricable intertwinement doctrine has since become overused, vague, and quite unhelpful. To ensure that there are no more doubts about the court’s position on this issue — the inextricable intertwinement doctrine has outlived its usefulness. Henceforth, resort to inextricable intertwinement is unavailable when determining a theory of admissibility.”)[.]

Saltzburg, Martin and Capra, Federal Rules of Evidence Manual, Paragraph 404.02[12] (10th ed. 2012) (discussing issue at length and concluding, “The ‘inextricably intertwined’ exception substitutes a careful analysis with boilerplate jargon.”).

See e.g., United States v. Peterson, 20 M.J. 806 (N.M.C.M.R. 1985)(We abhor the "shotgun" application of rule 404(b) and will not accept the "talismanic incantation" of the words motive, intent, plan or design, modus operandi, etc., with nothing more.); United States v. Jenkins, 48 M.J. 594 (A. Ct. Crim. App. 1998)(It is not necessary "that relevant evidence fit snugly into a pigeon hole provided by Mil. R. Evid. 404(b)." Nevertheless, the profferer should delineate the theories of admissibility, as occurred here, and not simply render a talismanic incantation of all the bases listed in the rule, as often occurs.)  And see United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010), in regard to Mil. R. Evid. 404(b) and 414.  ARTICLE: The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575 (1990).

And don’t forget that even though evidence might initially be admissible under Mil. R. Evid. 404(b), you still need to have the judge balance admissibility under Mil. R. Evid. 403.  See e.g. United States v. Ferguson, 29 M.J. 559 (A.F.C.M.R. 1989), pet. denied 32 M.J. 45 (C.M.A. 1990).

Here is a link to last years list.

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Because the President has signed the National Defense Authorization Act, subpeona’s duce tecum can now be issued for production of documents at an Article 32, UCMJ, hearing.  Section 542 amends Article 47, UCMJ.  The relevant piece is:

(1) in subsection (a)–

(A) in paragraph (1), by striking “board;” and inserting “board, or has been duly issued a subpeona duces tecum for an investigation pursuant to section 832(b) of this title (article 32(b);” and . . .

(2) in subsection (c), by striking “or board” and inserting “board or convening authority”.

This should be read in conjunction with R.C.M. 405(f) which is the self-contained discovery rules for an Article 32 and 405(g) regarding availability of evidence.

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NMCCA has had a “disparity” week.

United States v. Ochoa, is a case addressing a not infrequent issue, sentence/disposition “disparity” between co-accuseds. 

[A]ppellant’s claim does raise the issue of differences in initial disposition of co-accused, an issue that
can be viewed by this court in determining sentence appropriateness under Article 66(c), Uniform Code of Military Justice.  Noble, 50 M.J. at 295.  We find the nonjudicial disposition of LCpl Lopez’s and LCpl Ortega’s charges to be closely related to the appellant’s case.  Both of these Marines were directly involved in some of the frauds for which the appellant was sentenced.  When cases are closely related, yet result in widely disparate dispositions, we must decide whether the disparity results from good and cogent reasons.  United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994).

Keep in mind that it’s not an issue for the trial court, but certainly one can be raised in post-trial 1105’s.  See Slip op. at 2.

Contrast with United States v. Williams, and United States v. Leininger, co-conspirator cases.

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They slipped one through.  Last Thursday CAAF granted a petition for a non Fosler case.

No. 12-0053/AR. U.S. v. Richard L. EASTON. CCA 20080640. Review granted on the following issue:

WHETHER THE ARMY COURT ERRED IN HOLDING THE APPELLANT’S TRIAL DID NOT VIOLATE HIS CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY BECAUSE JEOPARDY DID NOT ATTACH AND EVEN IF IT DID, MANIFEST NECESSITY JUSTIFIED THE CONVENING AUTHORITY’S DECISION TO WITHDRAW CHARGES.

ACCA’s opinion in 1stLt Easton’s case is here at United States v. Easton.

The error assigned at ACCA was stated as:

THE MILITARY JUDGE ERRED IN RULING THAT APPELLANT’S TRIAL DID NOT VIOLATE HIS CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY.

An important question will be when does jeopardy attach, and if it attaches according to Article 44, UCMJ, is that Article unconstitutional.  Another question will be what meaning and affect is there to a withdrawal of charges for “manifest necessity.”

On 16 July 2007, the panel for the first court-martial was sworn and assembled. The parties conducted voir dire, the military judge ruled on challenges, and the court recessed shortly thereafter the same day.  No evidence was introduced, and no opening statements were given.  On 18 July 2007, the convening authority withdrew and dismissed the charges from the first court-martial.

Here appears to be the reason for the manifest necessity, is it?

On 16 July 2007, the court was assembled in the original case in these proceedings. At the time, two witnesses with firsthand knowledge, Lieutenant Colonel [(LTC) O.] and Major [(MAJ) E.], both were stationed in Iraq. [LTC O.]

And this was apparently known to the government, because,

the judge at the time [but it seems a time earlier than 16 July], and under reasonable conditions, found both witnesses unavailable. As a result, the judge ordered depositions of both witnesses.

Which apparently were done prior to the 16 July trial date.  But,

Immediately prior to the trial [on 16 July] after the depositions, it was discovered that the depositions somehow did not make it back from Iraq.  (In a footnote the court notes that the CD’s made it back, but were useless.) [Query, did someone check on that prior to 16 July?]

So, assuming I have the timing correct, if that was the state of play on 15 July, why did the government and the military judge start the court?  Would not 15 July be the right time to withdraw charges and thus avoid even the potential for a double jeopardy claim?  But having “begun” on 16 July knowing there was no evidence to produce, is there then manifest necessity for withdrawal?

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