Articles Posted in Up Periscope

On 22 March 2012, CAAF made summary disposition of United States v. Sobenes.

No. 11-0566/MC. U.S. v. Alan D. SOBENES. CCA 201000381. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the convening authority approved the sentence, which included a dishonorable discharge, and then stated "the adjudged sentence is approved and will be executed." Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority’s action purported to execute the dishonorable discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model "Forms for Action" in the Manual for Courts-Martial, United States app. 16 at A16-1 – A16-6 (2008 ed.) be revised. See United States v. Karras, 70 M.J. 25 (C.A.A.F. 2011); United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006). Accordingly, it is ordered that said petition is hereby granted, and that, subject to the above, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

For the SJA a reminder.

The Hamdaniyah related case of United States v. Hutchins ends, at NMCCA at least.

From time to time I raise a “constellation of error” in an appellate brief.  Otherwise known as the doctrine of cumulative error.  See United States v. Gray , 51 M.J. 1, 61 (C.A.A.F. 1999).

We hold, therefore, that this case “falls . . . within the ambit of the doctrine of cumulative error — under which a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding.” United States v. Walters, 4 U.S.C.M.A. 617, 635, 16 C.M.R. 191, 209 (1954). This Court will not lightly find reversible error in any case; however, we have been constrained on occasion to reverse a conviction because of the effect of cumulative errors found in the record of trial. E.g., United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969); United States v. Yerger, 1 U.S.C.M.A. 288, 3 C.M.R. 22 (1952).

United States v. Banks, 36 M.J. 150, 170–71 (C.M.A. 1992).

Various rules in the R.C.M. and the Military Rules of Evidence require notice to the other side.

Some rules are explicit, for example Mil. R. Evid. 412 requires notice no less than five days “before entry of pleas”, unless the military judge sets an earlier time.  Mil. R. Evid. 412(c)(1)(A), or see Mil. R. Evid. 413(b).  Other rules are less rigid in when notice must be given.  For example Mil. R. Evid. 902(11) or 609(b) , require notice with enough time for the opposing counsel to have “a fair opportunity to contest the use of the evidence.”

Included with the opportunity to contest is time to investigate.

Judge Posner has authored an interesting opinion in United States v. Flores-Lopez.

In the case police seized a cell-phone and took some phone numbers.  But in the process of deciding the limited Fourth Amendment issue, Judge Posner raises (but leaves to another day) the legitimate question that today’s cellphones are in fact computers and therefore cannot be searched without a warrant.

Check it out.

http://blogs.findlaw.com/blotter/2012/02/why-do-guilty-people-plead-not-guilty.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Blotter+%28FindLaw+Blotter%29

Thanks to Volokh Conspiracy here is an important case relevant to “searches” of computers.

We hold that the act of Doe’s decryption and production of the contents of the hard drives would sufficiently implicate the Fifth Amendment privilege. We reach this holding by concluding that (1) Doe’s decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.

First, the decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.

From time to time I’ve referred to federal jury instructions to help craft a “novel” members instruction.  Sometimes you have to refer to federal instructions for other reasons.  For example, I just completed a litigated “wire fraud” case, 18 U. S. Code Sec. 1343, where we needed to figure out the elements for assimilation under Article 134(3).

Here is a link through federalevidence blog that should help.

Here is an interesting case from the DC Court of Appeals – Pettus v. United States  – about the admissibility of handwriting testimony, and a link to a blog item.

H/T Crime&ConsequencesBlog

NMCCA dismisses a conviction for consensual homosexual sodomy in United States v. Stratton.  It’s unpublished but worth the read.

Appellant was accused of forcible sodomy, but was convicted of consensual sodomy.  That means Lawrence and Marcum had to be discussed.  Read this case for the following:

• A discussion and reiteration of a “private” location is . . .  The discussion may be fruitful beyond an Article 125 case.
• A discussion of and that “the military judge’s ruling that the general disruption to the unit [of the investigation of the charges] implicated the third Marcum prong is untenable (emphasis added).
•   When a TC proffers something to the court, double-tap that for accuracy, and vice-versa.
• Broad talismanic incantations are as unhelpful in analyzing Marcum factors as they are in Mil. R. Evid. 404(b), situations.