Articles Posted in The CCAs

The Army Court of Criminal Appeals will hear oral argument on Wednesday, August 3, 2016, at 10 a.m., in United States v. Ahern, No. 20130822.  The court will consider the arguments of counsel on the following two issues.

I. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO ARGUE THAT APPELLANT FAILED TO DENY SEVERAL PRETRIAL ALLEGATIONS “BECAUSE HE WAS GUILTY.”

II. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE PERMITTED TRIAL COUNSEL TO ARGUE THAT APPELLANT’S CONSULTATION WITH A CRIMINAL DEFENSE ATTORNEY WAS INDICATIVE OF HIS GUILT.

The problem is that the CCA’s don’t do that enough.  But at least they have the power.

In United States v. Quick:

The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).

Can a failure to file a pretrial motion equal ineffective assistance of counsel?  The BLUF is yes in some cases.  In some instances I have argued IAC on appeal for failing to make a meritorious motion.  The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue.  The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King.  The issue of IAC for failure to raise a pretrial motion is neither novel nor rare.  Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion.  I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges.  A more common issue is a motion to suppress, or speedy trial, or UCI.

  1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue:  [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
  2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”

For client Sgt Brown, with the assistance of his military defense lawyer we have secured a dismissal of some charges and a new trial on the remainder.  In United States v. Brown, the NMCCA issued an opinion on 30 June 2014, which addressed three of eight errors we raised: multiplicity of charges, validity of a false official statement, and improper use of character evidence which substantially prejudiced the defense.  Because of the court’s resolution of these errors they did not address the remaining five.

The court concluded that because of the prosecution and judge failures, “The findings and sentence are set aside.  Charge II and its sole specification (false official statement) are dismissed with prejudice.  A rehearing on the remaining charges is authorized.”

1.  On the multiplicity the court stated that, “we note that the Government concedes on appeal that it is “well established that the simultaneous possession of several weapons constitutes only one offense” for purposes of 18 U.S.C. § 922(g)(9). ”

In United States v. Blouin, ARMY 20101135 (A. Ct. Crim. App. 28 May 2014), the court has, in my view, taken a broader view of what qualifies as CP for the purpose of a guilty plea.  However, the court is not taking an unknown or unvisited trail.

Blouin was charged with possessing CP in violation of 18 U.S. Code Sec. 2256(8), to which at trial he plead guilty.

As is common in these type of cases, the prosecution threw up a whole bunch of alleged (173 to be exact) CP images, without really understanding what they were doing.  And they compounded this with offering 12 images as a “sample.”  This caused the military judge to reopen providency, because he found only three of the images were likely CP.

Continue reading →

In United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and United States v. Quigley, 35 M.J. 345 (C.M.A. 1992), the court set out a procedure to follow when an Appellant wants to raise and issue, but appellate counsel do not think it has merit for briefing.

During my time as deputy director at Navy Appellate Defense we did an informal study of Grostefon issues and found that the appellate court would from time to time find error and sometimes grant meaningful relief.

So when you begin reading United States v. McIntosh, ARMY 20120780 (A. Ct. Crim. App. 29 ay 2014), a Grosty case, you wonder what’s in store – the usual – some may say yes.

I was over at ACCA today for the oral argument in United States v. Martin.

As best I could tell CPT Martin was really drunk at the time of the alleged offenses.  A cab driver who dropped him off apparently testified that “he was the most drunk person he’s ever seen,” or words to that effect.  The gate guard said that “he could have been knocked over with a finger push,” or words to that effect.  And there was testimony that he could have been around a 2.5.

So, one of the judges asks appellate government counsel various questions about the appellant’s state of intoxication.  Naturally the government was downplaying it because the argument was he was too drunk to form a specific intent for attempted rape.  Eventually the judge asked if the appellant had been a complaining witness of sexual assault, would he have been drunk enough for a substantial incapacitation charge.

I posted a couple of weeks ago almost, that NMCCA’s cases in which the Fosler issue was addressed.  We have another case which appears consistent with NMCCA’s approach in those prior cases.

In United States v. Leubecker, the court took up a Fosler issue again.  The two challenged specifications related to breaking restriction and communicating a threat.  NMCCA ruled against appellant.

1.  It was a guilty plea, with a PTA.