Articles Posted in The CCAs

Generally

When deciding what a word or term in a statute means, the rule of statutory interpretation is to give the word or term its plain and ordinary meaning. This is known as the plain meaning rule. If the word or term is clear and unambiguous, then the court will not look beyond the text of the statute to determine its meaning. The principal rule is well known to military defense counsel as they prepare a case for trial.

If a word or term is ambiguous, then the court may use other tools of statutory interpretation to determine its meaning. These tools include:

Are military law enforcement investigations complete, thorough, and unbiased? It depends. The MCIO leadership and agents will tell you they are. Our experience over the years both as military defense counsel and military prosecutors is that investigations can be incomplete, with leads not followed, evidence not retrieved, and bias in the reports submitted to prosecutors and the command. For example, the reports tend to focus on the bad things about you and ignore what might be helpful to you or your case. We call these instances of biased investigations as affected by confirmation bias. Many times, this doesn’t make a lot of difference. But, in sexual assault cases, a biased and incomplete investigation can lead to problems for the defense—and also for the prosecution. The recent Court of Appeals for the Armed Forces (CAAF) decision in United States v. Horne is an example of how things can go wrong and, in your case, might create serious problems if something similar happened during your investigation.

According to the appellate decisions, the special victim counsel (SVC) and the trial counsel (TC) tried to discourage investigators from interviewing a witness. It worked for a while during which time it appears the witness had a less clear memory of events. The TC thought the witness might have “exculpatory” information which they are obligated to disclose to the defense and which might be helpful to the accused.

The Air Force Court of Criminal Appeals (AFCCA) decision has an extensive review of the facts and circumstances of what happened. Ultimately, the Air Force court and CAAF decided while it was wrong, there was no prejudice against the accused. This case represents how a prepared and aggressive military defense lawyer can help protect you and the record. Sadly, this could happen to you. It is not clear if the SVCs and TCs will learn anything from this case to study their practices and comply with the law and ethics rules. We shall see. The CAAF has these words,

(cleaned up)

Yes, back in 1976 I got my Bluebook and throughout the three years of law school, it was a regular reference.  Ah, but it continues to be a daily tool–for motions, briefs, and such.  I fear one day I’ll Bluebook a conversation with a relative or friend in everyday conversation.

One of the common questions is how best to quote, be it an appellate decision or a law journal.  Jack Metzler proposes a solution,  In Cleaning Up Quotations, to be published in 18 J. APP. PRAC. & PROCESS.

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.

Contact Information