Articles Posted in New Cases

United States v. Bond.

Before this court, Appellant has assigned the following errors:
I.
The military judge erred when he denied the defense motion to dismiss Charges I and III for prior jeopardy.
II.
An unsuspended bad-conduct discharge is an inappropriately severe punishment for the crimes of which Appellant was convicted.
III.
Appellant’s Fifth and Sixth Amendment rights were denied when he was prohibited from recording the Article 32 investigation, and by the subsequent denial of his motion for a new Article 32 investigation.

We exercise our Article 66, UCMJ authority and set aside the findings and sentence.

NMCCA has it’s opinion in United States v. Denedo, the petition for error coram nobis that his been winding its way through the courts, include the United States Supreme Court.

Essentially the court finds that even if there were IAC, petitioner has not established prejudice.

Back to CAAF?

CAAF has decided two cases related to Abu Ghraib:  United States v. Harman, and United States v. Smith.

The issue in Harman was factual sufficiency and the conviction and sentence was affirmed.

Appellant admitted to investigators that she took a new detainee, who had been placed on a box with a hood over his head, affixed his fingers with wires, and told him he would be electrocuted if he fell off the box. Appellant then photographed the victim who stood on the box for approximately an hour. Appellant admitted it was her idea to attach these wires, though military intelligence officials had not asked her or her colleagues to do so. Appellant thought this was permissible because “[w]e were not hurting him. It was not anything that bad.”

United States v. Matthews is an interesting new Army decision.

In this case the appellate courts ordered a DuBay hearing.  During that hearing the prior military judge testified as to his rationale for various decisions at trial.  Using that testimony, the Army Court of Criminal Appeals applied the harmless beyond reasonable doubt standard to findings of constitutional error.  On appeal, CAAF ordered a new review by ACCA specifically excluding the testimony of the judge at the DuBay hearing.

On 23 July 2009, the United States Court of Appeals for the Armed Forces set aside that decision, and remanded to this court for further review. United States v. Matthews, 67 M.J. 29, 43 (C.A.A.F. 2009). Specifically, our superior court held that it was error to consider the testimony of the original trial judge elicited during the DuBay hearing because it violated the protected deliberative processes of military judges sitting alone. Id. This court was instructed to reconsider our conclusion on harmless error without that improper testimony. Id.

At this point, the military judge interjected and asked 11 foundational questions of the witness. The questions were limited to Major D’s past service as an enlisted Marine in the same MOS as the appellant, his supervisory responsibilities as a Marine Corps gunnery sergeant within that MOS, the total number of years he served within the MOS, and the duties generally assigned within the MOS. Defense counsel did not object to any of the 11 questions asked by the military judge.

The NMCCA did not find the military judge’s laying a foundation for admissibility deprived the accused of a fair trial, in United States v. Davis, NMCCA 200900406 (N-M.C. Ct. Crim. App.  15 December 2009).  The court did not opine on why the trial counsel was unprepared to lay a foundation for the witnesses testimony, but did consider the failure of the defense to object as adverse to the accused.

Bottom line to the case:  trial counsel need not prepare to lay a foundation for witness testimony or documents, because if they don’t the military judge will do it for them.  Teaching point, trial counsel need not be aware of the rules for admission of testimony and laying a foundation, and they need not interview and prepare their witness in advance of trial.

The Navy-Marine Corps Court of Criminal Appeals released today its en banc decision in United States v. Medina, No. 200900053, __ M.J. __ (N-M. Ct. Crim. App. Dec. 17, 2009).  The main portion of the opinion focuses on Art. 120.  The majority finds Art. 120 facially constitutional, citing United States v. Crotchett, __ M.J. ___, No. NMCCA 200800770 (N-M. Ct. Crim. App. May 12, 2009) (en banc), the court’s prior decision on Art. 120.

So begins a post on CAAFLog

CAAF has decided United States v. Campbell, __ M.J. ___ (C.A.A.F. 2009).

We granted review of three issues raised by the decision of
the United States Navy-Marine Corps Court of Criminal Appeals
(CCA), as follows:
I. WHETHER THE LOWER COURT ERRED IN REASSESSING
APPELLANT’S SENTENCE, AS (1) ITS REASSESSMENT
CALCULUS WAS BASED UPON AN ERRONEOUS
UNDERSTANDING OF WHAT SPECIFICATIONS WERE MERGED;
(2) IT ABUSED ITS DISCRETION IN FAILING TO ORDER
A SENTENCE REHEARING IN LIGHT OF APPELLANT BEING
SENTENCED UPON TWICE THE AMOUNT OF SPECIFICATIONS
AS APPROPRIATE; AND (3) THE UNDERLYING LOGIC USED
TO NOT REDUCE APPELLANT’S SENTENCE WAS FAULTY.
II. WHETHER THE LOWER COURT ERRED IN FINDING THAT
POSSESSION OF THE SAME IMAGES OF CHILD
PORNOGRAPHY ON DIFFERENT MEDIA CAN BE CHARGED AS
SEPARATE CRIMES UNDER 18 U.S.C. § 2252A.
III. WHETHER THE LOWER COURT ERRED IN DETERMINING THAT
THE THREE SPECIFICATIONS UNDER CHARGE II WERE NOT
“FACIALLY DUPLICATIVE.”
We hold that Appellant’s unconditional guilty plea waived
Issue II on appeal, and that the specifications were not
“facially duplicative” under Issue III. However, we hold that
the CCA erred in part on Issue I and remand for sentence
reassessment.

United States v. Story.  Here the issue is two-fold: what is the response when the members want to call a witness, and what is permissible on appeal to demonstrate prejudice.  ACCA found error in the military judge denying the members an opportunity to call a witness.  On appeal, ACCA found that documents submitted by appellate government and appellate defense could not be considered.  This seems odd, because the defense is trying to show prejudice from the error and the government is trying to show lack of prejudice.

When the members returned, immediately after calling the court to order and accounting for the parties, the following colloquy ensued:

MJ: Members, the bailiff indicated that you had a question? Colonel Meyer is shaking her head.

NMCCA has issued six new decisions, of which four are merits.

United States v. Maharrey, post-trial delay case.

United States v. Thornton.  Appellant raises ineffective assistance of counsel (IAC) and sufficiency of the evidence.  The findings and sentence are set-aside based on the IAC.  The IAC relates to several issues:  failure to properly advise on forum; failure to prepare appellant to testify; failure to cross-examine some witnesses.  A DuBay (United States v. DuBay, 37 C.M.R. 411 (1986)) hearing was ordered.  The military judge found several issues of IAC.  The DuBay judge did not agree with all the allegations of IAC.

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