Sometimes appellate counsel find themselves looking at ineffective representation in advising a client to plead guilty and then the conduct of the negotiations.
Taylor v. Crowther, USDC Utah may be worth the read. (The court opinion is within the article.)
Here the issue was related to sentencing.
When two people jointly buy drugs for their individual use and then transfer the drugs between themselves, does that amount to distribution for prosecution purposes–apparently so based on a new case from ACCA.
United States v. Myers, ACCA March 2020.
This appeal raises a compelling question: whether joint purchasers and possessors of a controlled substance, who intend to share it between themselves as users, may be found guilty of wrongful distribution of a controlled substance under Article 112a, Uniform Code of Military Justice [UCMJ].
Here’s is an essay for those interested in defining or otherwise addressing consent in military sexual assault cases.
Aya Gruber, “The Complexity of College Consent,” Adjudicating Campus Sexual Misconduct and Assault: Controversies and Challenges, ed. Claire M. Renzetti and Diane R. Follingstad. Copyright © 2020 Cognella, Inc. Uploaded to SSRN with permission.
Haven’t seen this come up for a while.
An individual can “abandon his rank and position of authority in dealing with a subordinate by his own misconduct.” United States v. Richardson, 7 M.J. 320 (C.M.A. 1979) (citing United States v. Noriega, 7 C.M.A 196 (C.M.A. 1956)).
The Government argues that the defense of abandonment of rank only applies to offenses against commissioned officers and does not apply to offenses against noncommissioned officers. The Court of Appeals for the Armed Forces and several Service courts, including this one, have held, at least implicitly, that abandonment of rank is a defense to disrespect or disobedience to a noncommissioned officer. See, e.g., United States v. Diggs, 52 M.J. 251, 256-57 (C.A.A.F. 2000); United States v. Sanders, 41 M.J. 485, 486-87 (C.A.A.F. 1995); United States v. Vallenthine, 2 M.J. 1170 (N.C.M.R. 1975); United States v. Revels, 41 C.M.R. 475 (A.C.M.R. 1969); United States v. McDaniel, 7 M.J. 522, 523 (A.C.M.R. 1979); United States v. Taylor, 30 M.J. 882 (A.F.C.M.R. 1990).
The Canary in the Military Justice Mineshaft: A Review of Recent Sexual Assault Courts-Martial Tainted by Unlawful Command Influence, by Mark Visger. 41 MITCHELL HAMLINE L. J. PUB. POLICY & PRACTICE 59
The Pentagon has launched a new program that aims to find serial sex offenders in the military by compiling information into a database submitted by sexual-assault survivors.
The program, called Catch a Serial Offender, or Catch, allows survivors of sexual assault who are submitting a restricted report to provide information confidentially about the sexual assault incident as well as the accused offender to military investigators so they can try to identify serial offenders, according to the Pentagon announcement released Monday.
It looks like CAAF is ready to give us their interpretation and applications of MIL. R. EVID. 801(d)(1)(B)(i) AND 801(d)(1)(B)(ii). Yesterday, CAAF granted in the following cases.
No. 20-0006/NA. U.S. v. Matthew D. Norwood. CCA 201800038. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING, OVER DEFENSE OBJECTION, THE ENTIRE VIDEO-RECORDED INTERVIEW OF THE COMPLAINING WITNESS UNDER MRE 801(d)(1)(B)(ii) AS A PRIOR CONSISTENT STATEMENT.
You have heard me speak of secondary gain; a term used by psychologists which we lawyers call motive to lie. There are several motives to lie, United States v. Wetuski, AFCCA, presents two–to get out of trouble and to get an expedited transfer.
Given the timing of A1C ME’s removal from military justice and the closeout of her LOR, trial defense counsel attempted to show A1C ME had motive to misrepresent her accusations against Appellant. In trial defense counsel’s view, A1C ME was dissatisfied with her current situation in the Malmstrom AFB legal office and needed an expedited transfer to get a fresh start and the way to do that was to accuse Appellant of sexual assault. Several members of the legal office testified that they heard A1C ME say once, in the months before her accusations against Appellant, that a group of female Airmen who lived in the dormitories at Malmstrom AFB knew what they needed to say and to do to get an expedited transfer. One of those witnesses explicitly stated that what needed to be done was “you have to have an unrestricted sexual assault report and see the [Sexual Assault Response Coordinator].” This witness opined that
this was “not very” hard. Members of the legal office believed there was an increase in outgoing expedited transfers from Malmstrom AFB during the winter of 2016–2017.
From time to time I bring attention to a civilian case that may be of interest to practitioners. Mostly these are post-CAAF cases arising from the USDB. So today I have Coleman v. Commandant., decided 22 November 2019, in the USDC Kansas.
This matter is a pro se petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner was granted leave to proceed in forma pauperis. Because Petitioner is confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas, this matter was transferred to this Court from the District of North Dakota. Petitioner seeks to set aside his 2012 conviction by general court-martial, based on the holdings in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).
Petitioner, a former active duty member of the United States Air Force, was tried in September 2012 by general court-martial at Minot Air Force Base, North Dakota. Contrary to his pleas, Petitioner was convicted of one specification of rape, three specifications of aggravated sexual assault, and one specification of forcible sodomy, in violation of Articles 120 and 125 of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 920, 925. Petitioner was sentenced to a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and a reduction to the grade of E-1. On March 1, 2013, the convening authority approved the sentence.
No. 19-0467/AR. U.S. v. Charles E. Robinson III. CCA 20170536. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that the sentence affirmed by the lower court appears not to conform to the terms of the pretrial agreement. In accordance with C.A.A.F. Rule 30A, it is appropriate for the Court of Criminal Appeals to consider this issue initially. Accordingly, it is ordered that said petition is granted on the following specified issue:
WHETHER THE CCA ERRED IN AFFIRMING A SENTENCE TO CONFINEMENT FOR LIFE WITHOUT PAROLE WHERE THE PTA PROVIDED THAT THE CONVENING AUTHORITY WOULD DISAPPROVE ALL CONFINEMENT IN EXCESS OF 25 YEARS.
The decision of the United States Army Court of Criminal Appeals is affirmed as to findings but set aside as to sentence. The case is returned to the Judge Advocate General for remand to the Court of Criminal Appeals for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012) shall apply.
Court-Martial Trial Practice Blog
