This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

Here is a link to a few cases of interest that were provided me last week at the 49th VACLE Criminal Law seminar.

Virginia is in the Fourth Circuit which, I believe, has a reputation as slightly conservative leaning.

United States v. Abdallah, ___ F.3d___ (4th Cir. 18 December 2018).  Code 45 Alumni and friend Jim Wynn is one of the panel members.  This case involves two issues: invocation of the right to silence and the all-important Brady issue.

Appellant challenges the factual sufficiency of his conviction for sexually assaulting MB. We have reviewed the evidence, which includes a video-recording of

appellant’s sexual encounter with MB. The video-recording demonstrates that MB repeatedly gave audible consent—or at least what reasonably appears to be audible consent—to sexual intercourse with appellant. Considering this evidence, we are not personally convinced that MB was incapable of consenting to the sexual intercourse.

The footnote to this finding states:

Thanks to Prof. Berman at Sentencing Law 7 Policy who directs us to Murray, Brian, Are Collateral Consequences Deserved? (January 29, 2019). Available at SSRN: https://ssrn.com/abstract=

I have a standard sex offender registration motion that I use in all cases in which a sex offense is charged and if convicted the client will have to register as a sex offender.

Few appellate courts have been willing to agree that SOR is a punishment and hold that to be a collateral consequence.  Some state supreme courts have held new amendments to their state law are “punishment” for ex post facto analysis, but they are few.  Despite that, I continue to argue that SOR is more than a collateral consequence.  As the second part of my motion, I argue admissibility of SOR as “evidence” under the principles for giving punishment, on which the members are instructed: particularly rehabilitation and deterrence.

On appeal, Appellant asserts three assignments of error: (1) whether Appellant is entitled to sentence relief due to the conditions of her post-trial confinement; (2) whether Appellant is entitled to relief because the Staff Judge Advocate’s Recommendation (SJAR) failed to address alleged legal errors; and (3) whether the approved sentence is unduly harsh as compared to sentences in similar cases. We specified two additional issues: (1) whether trial defense counsel incorrectly stated in the clemency submission the effect of a particular term in the PTA and (2) whether Appellant is entitled to new post-trial processing in light of United States v. Addison, 75 M.J. 405 (C.A.A.F. 2016) (mem.), either because the addendum to the SJAR did not correct an error in trial defense counsel’s clemency submission regarding the particular term in the PTA or because the SJAR misadvised the convening authority concerning the PTA. We find that there was no meeting of the minds concerning the term in the PTA and thus set aside the findings and the sentence.

United States v. Rush, (A. F. Ct. Crim. App. January 2019).

Advising a client on SOR is difficult.  They want specific answers and often you can’t give them more than general advice.  There are several points I try to make with clients.

Title I of the Adam Walsh Child Protection and Safety Act of 2006, the Sex Offender Registration and Notification Act (SORNA), specifically includes certain Uniform Code of Military Justice (UCMJ) convictions in its definition of “sex offense.”

Department of Defense Instruction 1325.07 contains the specific list of UCMJ convictions that require registration under SORNA1. Jurisdictions must ensure that all of the UCMJ convictions listed in DOD Instruction 1325.07 are included in their sex offender registration schemes.

I have always argued for full and early discovery in court-martial cases.  How can you defend someone when discovery is delayed or held-back.  And how can you make a properly considered judgment on a PTA or not.

“The Right to Evidence of Innocence Before Pleading Guilty,” on SSRN. Here is the abstract:

George Alvarez, a ninth grade, special education student, pleaded guilty to assault of a peace officer in Texas. Four years into his sentence, Alvarez learned that the State had suppressed a video of the incident that proved his actual innocence. Alvarez claimed that the city violated the Brady doctrine by failing to disclose material exculpatory evidence. In rejecting his claim, the Fifth Circuit concluded that “case law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process.” Given that 95% of convictions are secured through guilty pleas, such an interpretation of Brady means that few defendants are entitled to evidence of their innocence before being convicted.

Christopher B. MuellerLaird C. Kirkpatrick and Liesa Richter (University of Colorado Law School, George Washington University – Law School and University of Oklahoma – College of Law) have posted two entries from their new book, Evidence §3.13 (6th ed. Wolters Kluwer 2018), on SSRN. The first is §3.13 ‘Presumptions’ in Criminal Cases. Here is the abstract:
This article addresses the constitutionality of “presumptions” in criminal cases. It discusses the leading case of Sandstrom v Montana and its holding that a presumption cannot be mandatory in a criminal case.
The second is §3.14 Inferences in Criminal Cases. Here is the abstract:

Be careful of who you talk to if you are in trouble.  I think it’s fair to say that CAAF has narrowed the who and when requirement for an Article 31, UCMJ, warning, as illustrated in a recent Air Force case.

Thus, Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected.” Jones, 73 M.J. at 361 (footnotes omitted) (citation omitted). However, the second of these prongs is met only if the questioner was acting in an official law enforcement or disciplinary capacity, or could reasonably be considered to be acting in such a capacity by a “reasonable person” in the suspect’s position. Id. at 362. “Questioning by a military superior in the immediate chain of command ‘will normally be presumed to be for disciplinary purposes,’” although such a presumption is not conclusive. Swift, 53 M.J. at 446 (quoting United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991)) (additional citations omitted).

An “interrogation” includes “any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.” Mil. R. Evid. 305(b)(2).

The answer is possibly, but it requires some very specific analysis using the Reynolds test.  The Air Force Court of Criminal Appeals has decided United States v. Hyppolite, II, where this issue arose.

In this case, the prosecution sought to use evidence of different allegations of a sexual offense to show that, “Appellant’s conduct admitted to prove each charged offense could properly be used under Mil. R. Evid. 404(b) as evidence that Appellant had a pattern or common plan of engaging in sexual conduct with his friends after they had been drinking and were asleep or trying to fall asleep.”

“The crux of Appellant’s position throughout trial and on appeal is that the sexual conduct alleged in each specification was separate and distinct and must stand on its own. Appellant contends that the allegations were not sufficiently similar to show a common plan and that allowing evidence of one charged offense as evidence of a separate charged offense was tantamount to allowing the factfinder to consider evidence of Appellant’s propensity to engage in sexual misconduct. Appellant, citing United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and United States v. Hills, 75 M.J. 350 (C.A.A.F 2016), renews on appeal his claim that the military judge misapplied Mil. R. Evid. 404(b) and Mil. R. Evid. 403 and improperly allowed charged offenses to be used as propensity evidence to prove other charged offenses?