Articles Posted in Up Periscope

For some time now each of the Services have been undergoing a draw-down.

Naturally, you would think that they would cut those with significant misconduct or performance issues, and that there should be any number who would fit into that category.

Here is an interesting piece about some of the reasons most Army majors have been let go.

It’s all about evals (and timing I would say), not racially motivated.

No this is not a comment on T. Scott McLeod’s book. Nor is it a comment on how to make providence work in your favor, although by the results it could be.

Oh, sorry.  Ya gotta read United States v. Stout, decided by ACCA on 25 July 2014.

The accused plead guilty to abusive sexual contact with a 14 year old, indecent liberty with a child, and possession of child porn, all violations of the UCMJ and prosecuted at court-martial.  The MJ gave him a BCD and 8.  ACCA determined the MJ erred in accepting any of the pleas and set aside the findings and sentence.

As you start to read the opinion you are initially thinking he’s minimizing – as did the court initially think.  You’ve been there right, as a military defense lawyer – tell the judge just enough, etc., etc., etc.

The court reminds of the very point about how an accused who minimizes during the providence inquiry doesn’t necessarily have an improvident plea.  The court said some single or minor inconsistency may be mere attempts by appellant to rationalize his actions, insufficient to invalidate the providence of the plea. Ultimately Stout’s statements went beyond minimization and set up substantial inconsistencies.  I might add that if the facts are as Stout and the stipulation say, this is not a case that should have been prosecuted.  But it’s 2014 and . . . (insert rant if you care to). The Army Court of Criminal Appeals (ACCA) cites to United States v. Goodman, 70 M.J. 396 (C.A.A.F. 2011); United States v. Rokey, 62 M.J. 516 (A. Ct. Crim. App. 1995), as authority.

Often an accused is reluctant to admit to a particular aspect of an offense. However, that should not vitiate his guilty plea if he recognizes that the evidence against him will prove the point, and he admits his guilt to the offense. We should not overlook human nature as we go about the business of justice. One aspect of human beings is that we rationalize our behavior and, although sometimes the rationalization is “inconsistent with the plea,” more often than not it is an effort by the accused to justify his misbehavior. A good trial judge can usually sort out the guilty plea and determine if an accused is so pleading because he has committed the offense charged.

United States v. Hall, 73 M.J. 645, 648 (A.F. Ct. Crim. App. 2014).

I always knew there was a reason – other than the case name – why we old timers refer to the Care inquiry (along with other names such as Suzuki credit, Allen credit, etc., etc., etc.). The Court of Appeals for the Armed Forces has over time ensured that before an accused can plead guilty to a UCMJ offense at court-martial, there must be a very careful inquiry of the facts and circumstances. When a military judge fails to conduct a careful inquiry which leads to inconsistency issues, the decision will be reviewed for an abuse of discretion.

I wonder where the TC was in all of this – not putting up a stout defense of the record apparently.  Message to TC, you have a duty to your client to protect us from an errant judge.  You need not feel intimidated and remain silent when the military judge asks you and the military defense counsel if you want any additional questions.

Do I have a felony is a frequent question to which the answer is – maybe.  Of course the questioner is interested in the collateral effect of a special or general court-martial conviction.  This becomes particularly important if you continue to commit crimes after release from the brig and the military.

Are courts-martial courts under the Armed Career Career Criminal Act – yes says The Fourth, as do The Ninth and The Seventh.

Pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and section 4B1.4 of the Guidelines, an individual who violates § 922(g) and has “three previous convictions by any court referred to in section 922(g)(1) . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another” qualifies as an armed career criminal. 18 U.S.C. § 924(e)(1) (emphasis added).

United States v. Grant, ___ F.3d ____ (4th Cir. June 3, 2014), slip op. at 4.

Grant challenged a determination that a general court-martial conviction for aggravated assault and for kidnapping was not from a qualifying court under the ACCA.  This is a case of statutory interpretation of the language conviction by “any” court.  First the court determines that a qualifying court needs to be a domestic court, referring to Small v. United States, 544 U.S. 385 (2005).  The court then engages in a review and discussion of the court-martial jurisdiction and procedure.

The court adopts the reasoning in United States v. Martinez, 122 F.3d 421 (7th Cir. 1997), and United States v. MacDonald, 992 F.2d 967 (9th Cir. 1993); each of which appears to be based on United States v. Lee, 428 F.2d 917 (6th Cir. 1970).

Note:  All I can find on LEXIS is a petition to CMA in October 1980, from ACMR.

Did he go AWOL?

In June 2012, Michael Hastings (of GEN McCrystal “fame”) appears to have made that suggestion in a lengthy piece published by Rolling Stone.

The mother and father sit at the kitchen table in their Idaho farmhouse, watching their son on YouTube plead for his life. The Taliban captured 26-year-old Bowe Bergdahl almost three years ago, on June 30th, 2009, and since that day, his parents, Jani and Bob, have had no contact with him. Like the rest of the world, their lone glimpses of Bowe – the only American prisoner of war left in either Iraq or Afghanistan – have come through a series of propaganda videos, filmed while he’s been in captivity.

Within the article Hastings says:

Bowe Bergdahl had a different response. He decided to walk away.

. . . .

Bowe returned to his barracks, a roughly built bunker of plywood and sandbags. He gathered up water, a knife, his digital camera and his diary. Then he slipped off the outpost.

The response to Bergdahl’s release has been across the board.  See e.g., Critics Rouse as US Defends Swap With Taliban

Among the responses, Brad Knickerbocker of Christian Science Monitor has this headline today – Did Bowe Bergdahl go AWOL in Afghanistan?

Ils accusent.

Real and to be expected-a natural consequence of how Congress and perhaps leadership is approaching the real and very important issue of preventing sexual assault? reports, In Survey, Lackland DIs Rip Leaders, Fear Recruits, 29 May 2014.

A survey of basic-training instructors conducted during the worst sex scandal in Air Force history revealed a sharp distrust of senior commanders at Joint Base San Antonio-Lackland and a widespread fear of recruits.

In what might seem an obvious consequence of how the issue of sexual is being addressed:

“I am terrified I’m going to have my career ended by a trainee that drops a comment because I hurt his feelings or they just don’t like me,” one instructor wrote in the survey.  “Leadership does not back us up. At all,” the instructor continued. “I’ll give it to you in a nutshell: trainees run this place, MTI’s are afraid constantly of getting in trouble over hurting a spoiled 18-year-olds’ feelings, and no one is willing to change that,” one instructor wrote.

I’m not certain these thoughts are limited to MTIs at Lackland.  And perhaps this is a consequence of denial as well as training that only a complaining witness is to be believed.  As evidence of the leadership the article goes on:

 Rand found that more than half of the instructor corps worked more than 11 hours a day last summer, and that two thirds of “street” MTIs — those who train recruit flights — slept five hours or less a day.

Another one-third of supervisors and other instructors also said they slept five hours or less a day.

Camerer (the wing commander) said he was surprised to learn of the problem, but added that some instructors told him “they just didn’t want to leave their flight.”  (Emphasis added.)

Cooperation and teamwork are necessary elements of leadership, and vital to a correction of problems.

 Instructors also expressed concerns about interaction of Col. Deborah Liddick, commander of the 737th Training Group, with those running the group’s eight training squadrons.  One said, “It is very apparent that she does not trust anyone who is an MTI and she continues to discredit the feedback given to her on decisions made.”

But wait, the wing commander said that, “I need my MTIs to know we listen to them.”

Perhaps the Rand Survey can be extended throughout the Services as part of sensing sessions and a 360 view of how sexual assaults in the military are being addressed in actuality.

What are the full limits of confrontation when it comes to scientific and expert testimony.


Federal evidence blog notes:

In denying certiorari review (this week0  in eleven cases raising Confrontation Clause and expert testimony issues, for the foreseeable future the Supreme Court will not resolve a significant issue that has been dividing the lower court; it remains to be seen when the guidance urged by the lower courts will be provided.

They further note that a twelfth case will be considered in June.  A Conference is set for June 5, 2014, in the twelfth case: Derr v. Maryland (No. 13-637), which presents the following issue:

Whether the Sixth Amendment permits the State’s expert witness to present to a jury the results of forensic tests that she neither performed nor witnessed as substantive evidence to support her conclusion that Petitioner was the source of DNA evidence, when the State does not call the analysts who performed the tests as witnesses or show that they are unavailable and previously subject to cross-examination.

As the Petition For A Writ Of Certiorari summarizes:

This case concerns an important question of constitutional law that is frequently litigated in criminal cases: the limits the Confrontation Clause places on the government’s use of an expert opinion that is based on the results of forensic testing that have been made known to the expert but about which the expert is not competent to testify. The Court sought to answer that question in Williams, 567 U.S. __, 132 S. Ct. 2221, but the divided decision has spawned enormous confusion, and deep conflict, in state and lower federal courts. This case provides a proper vehicle for the Court to provide authoritative guidance to the lower courts because the decision in the court below is in conflict with the decisions of at least eleven state supreme courts and three federal courts of appeals.

By regulation (the U.S. Navy Regulations and the Navy’s Standard Organization and Regulations Manual (SORM), OPNAVINST 3120.32x,), the Navy required personnel to report having been arrested or prosecutions for criminal acts by civilian authorities.

In United States v. Serianne68 M.J.580 (N.M.Ct.Crim.App. 2009), aff’d69 M.J. 8 (C.A.A.F. 2010). the courts found the order unlawful, in violation of a members right against self-incrimination under the Fifth Amendment, U.S. Constitution.

In response to Serianne, the Navy issued a new order (ALNAV 049/10 dtd 21 Jul 2010; NAVADMIN 373/11, 08 December 2011.7
(amending OPNAVINST 3120.32C ) which required reporting, but then sought to give a qualified immunity from disciplinary action based solely on the report.

In United States v. Castillo, NMCCA 201300280 (N-M Ct. Crim. App. 27 May 2014), the Navy court has found the new regulation to be a valid order, and has affirmed a conviction for failing to report a DUI.  The court rejects the constitutional and regulatory challenges to the regulation.  The court finds that while the statements are testimonial and compelled, they are not ulawfully so, especially in light of a “use immnunity” within the regulation.

As the military judge correctly determined, the use restriction in NAVADMIN 373/11, paragraph 6A, removed any real and appreciable danger of legal detriment for a self-reported arrest or criminal charge. Thus, we conclude the compelled, testimonial statement required by the regulation is not incriminating.

The court then analyzed the regulation as being punitive in light of the seven factors set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-70 (1963).  Needless to say:

In sum, the majority of the Mendoza-Martinez factors clearly weigh in favor of finding the self-reporting requirement of the revised OPNAVINST 3120.32C regulatory in nature. Based on this analysis, we find the revised OPNAVINST 3120.32C was promulgated for a regulatory or administrative purpose and thus complies with U.S. Navy Regulations Article 1137 as amended by ALNAV 049/10.

We should anticipate future litigation to revolve around actual or perceived violations of the use immunity.

You are an enlisted person.

1.  You are reduced at Art. 15 from E-6 to E-5, you retire as an E-5.  What rank is your retirement check based on and how is it calculated.  Assume you came on active duty after 1 September 1980.

2.  You are reduced at special court-martial from E-9 to E-6, you retire.  What rank is your retirement check based on and how is it calculated.  Assume you came on active duty after 1 September 1980.

3.  You are reduced at special court-martial from E-7 to E-4, you have sufficient time and you are re-promoted and serve in grade as an E-6 at the time you retire.  What rank is your retirement check based on and how is it calculated.  Assume you came on active duty after 1 September 1980. Continue reading →

Senator Gillibrand is not happy.

Here is one of her unsubstantiated complaints.  I am quite sure that some of those committing sex offenses have done so before, and with predatory behavior.  But casting the vast majority of he said/she said cases as predatory men assaulting angelic waifs who can’t care for themselves is sexist and engaging in gender politics.

“More reporting is not the end game,” Gillibrand said. “Justice and removing recidivist predators from the military so they cannot commit more crimes to arrest the problem is the end game.

So reports Stars & Stripes.  In that vein, Gene Fidell at , has reported a quote from a recent speech of Senator Gillibrand.

“I am deeply worried by today’s data showing no increase in the prosecution and conviction rates compared to overall reporting. More reporting is not the end game. Justice and removing recidivist predators from the military so they can not commit more crimes to arrest the problem is the end game. More people coming forward and not receiving justice only further erodes trust in the system. These shocking numbers should spur Congress to act and finally put these cases in the hands of trained legal professionals to fix a system that is failing our brave men and women in uniform.”

The foregoing quote is from the May 1, 2014 statement of Sen. Kerstin Gillibrand(D.-NY), Chair of the Senate Armed Services Subcommittee on Personnel, on the Department of Defense’s Fiscal Year 2013 Annual Report on Sexual Assault in the Military.