Articles Posted in Appeals

The NMCCA has issued two significant opinions this week, one of which is worth the read while the United States prosecution of Bowe Bergdahl continues.

United States v. Solis, __ M.J. ___ (N-M Ct. Crim. App. 2016).  The case presents discussion of continuing issues relating to the nature of the proof and member (jury) instructions in military sexual assault cases.  These types of cases, especially where alcohol is involved present complex challenges to the military defense counsel.

  1. Article 120(b)(3)(A) of the UCMJ is unconstitutional because the language “incapable of consenting to the sexual act because she was impaired by . . . alcohol” is unconstitutionally vague.

Is it an indecent exposure offense under UCMJ art. 120, to show someone a digital picture of your own genitals?

In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016), the Army Court of Criminal Appeals split 2-1 in deciding the case.  The court holds that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.

That’s the BLUF.

I have commented on this before–post-CAAF habeas corpus, but a new case from the 9th is time for a reminder.

Narula v. Yakubisin (CO, NAVCONBRING Miramar), No. 15-55658 (9th Cir. 17 May 2016).

It is common for the military appellant to think about federal court once their military appeal is complete.  The route to federal court is through a federal habeas corpus proceeding, in accordance with 28 U.S.C. § 2241.  It is rare to get past a motion to dismiss, let alone win on the merits.

Can the actions of military prosecutors raise the specter of Unlawful Command Influence?

Maybe.

That conclusion can at least can be gleaned from the case of United States v. Garcia, decided in 2015 by the Army Court of Criminal Appeals.  (United States v. Garcia, No. 20130660, 2015 CCA LEXIS 335 (A. Ct. Crim. App. August 18, 2015)[ http://www.court-martial-ucmj.com/usvgarcia/].

On 30 November 2015, the Supreme Court heard oral argument in Musacchio v. United States, a case of potential interest to military justice practitioners.

There are two questions presented.

(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and

It took how long?!%#@

Well, in United States v. Gonzalez, a Coast Guard general court-martial, the sentence was announced on 27 July 2011.  The case did not get docketed with the CGCCA until 19 December 2014.  That means a total of 1,241 days went by before the appellate court began a mandated review under UCMJ art. 66(c).

And people wonder why appeals take so long.

Some may remember United States v. Latorre, No. ACM 34670 (A.F. Ct. Crim. App. 3 April, 2002), 64 M.J. 80 (C.A.A.F. 2006).

The case had something of a tortured appellate history, ultimately leading to a habeas corpus petition in federal court.  See Background, at p.1.

Like the mythical Phoenix, Latorre sought to get some lift from the U.S. District Ct. for the Northern District of Ohio, in Latorre v. FCI Elkton.[1]

In Ehlers v. Warden, [1] the court sets out the common understanding of federal review of a court-martial.

“[T]he scope of a habeas corpus review of a military conviction is more narrow than a habeas corpus review of a conviction by a civil court.” Swisher v. United States,354 F.2d 472, 475 (8th Cir. 1966). “In military habeas corpus cases, . . . it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings—of the fair determinations of the military tribunals after all military remedies have been exhausted.” Burns, 346 U.S. at 142. Therefore, it is not the duty of the civil courts to re-examine and re-weigh each item of evidence or events which tend to prove or disprove one of the allegations in the applications for habeas corpus. Id. at 144. “It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims.” Id. In other words, federal civil courts “must defer to the decision of the military court if that court has given fair consideration to the claims advanced in the habeas petition.”Gilliam v. Bureau of Prisons, No. 99-1222, 2000 WL 268491, at *2 (8th Cir. Mar. 10, 2000) (citing Burns, 346 U.S. at 142-44). “[W]here an issue is adequately briefed and argued before the military courts the issue has been given fair consideration, even if the military court disposes of the issue summarily.” Allen v. U.S. Air Force, 603 F.3d 423, 431 (8th Cir. 2010) (quoting Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003)).

The Dist. Ct. finds that, “In his Petition, he asserts that his trial [defense] counsel [2] was ineffective during sentencing because he produced only written statements from mitigation witnesses but would not call them to testify. He claims this led to an unfairly long sentence. For the reasons set forth below, the Petition is denied and this action is dismissed.”  Of interest in the court’s opinion is this observation.

While “full and fair consideration” is the universal standard for military habeas petitions, the Federal Circuits have not developed a uniform analysis to determine what constitutes “full and fair consideration” by the military courts.

After a review of cases the court went on to suggest that:

In Lips [Lips v. Commandant, 907 F.2d 808  (10th Cir. 1993)], the Tenth Circuit applied a four-part test to help determine whether the federal court may consider the merits of a military habeas case. See Lips, 997 F.2d at 811.See also Dodson v. Zelez, 917 F.2d 125, 1252-53 (10th Cir. 1990) (adopting the four-part test from the Fifth Circuit’s opinion in Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911 (1976)); see also Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003) (clarifying that the four-part test is meant to aid courts in applying Burns rather than serve as a separate hurdle to be met before review of a military court decision). In the Tenth Circuit, before reaching the merits of any claim, the federal habeas court must consider four factors:

(1) the asserted error is of substantial constitutional dimension;

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