Court-Martial Trial Practice BlogCAAF has issued an opinion in United States v. Smead, __ M.J. ___ (C.A.A.F. 2009). Chief Judge Effron wrote the opinion for Judges Baker and Stuckey, and Judges Ryan and Erdmann concurred in the judgment.
Articles Posted in New Cases
Paying for experience
United States v. Wiechmann, __ M.J. ___, No. 09-0082/MC (C.A.A.F. July 6, 2009) has been decided. There was error, but found to be constitutionally harmless.
After a captain with very little defense experience was detailed to represent a retirement-eligible lieutenant colonel, the Chief Defense Counsel of the Marine Corps detailed a highly respected Marine Reservist LtCol as a defense counsel in the case. From this point on the convening authority and the first military judge on the case refused to recognize or deal with LtCol Shelburne as a detailed counsel. A second judge did accept the detailing. The issue was money, who pays for the LtCol.
Contrary to law
United States v. Contreras, ACM 37233 (A.F. Ct. Crim. App. 28 May 2009).
Contreras is charged with violating Article 130, UCMJ, as well as some other serious charges. Regrettably this is one of a never ending series of sex cases stemming from alcohol. Here is the issue on the 130.
AFCCA rejects application of United States v. Conliffe to the facts here and finds that committing indecent acts with another is not a purely military offense even though charged under Article 134, UCMJ. This makes sense. The militariness of the action or conduct should be the factor, not what UCMJ article was used for the charge. Using the court’s rationale, house-breaking for the purpose of being disrespectful to a non-commissioned officer would likely not be an offense in Minnesota (although we could be creative I suppose under the MNANG version of the UCMJ), therefore, not punishable under Article 130.
Disturbing trend?
NMCCA today issued an important published opinion setting aside a finding of guilty to distribution of child pornography under 18 U.S.C. § 2252A(a)(2). United States v. Craig, __ M.J. ___, No. NMCCA 200800716 (N-M. Ct. Crim. App. May 28, 2009).
AFCCA today issued a fascinating published opinion, which I’ve posted here. United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009). Senior Judge Francis wrote for a unanimous panel.
Senior Airman (SrA) Nerad was carrying on an adulterous affair with a 17-year-old. But for the fact that he was married, it would have been legal under both military and the relevant civilian law for SrA Nerad to have sex with her. His 17-year-old lover e-mailed to SrA Nerad nude and partially nude pictures of herself. He also took nude pictures of her, including some while they were engaged in sex acts.
Excluding taped conversations
United States v. Crabtree, No. 08-4411, 2009 U.S. App. LEXIS 10720(4th Cir. May 19, 2009).
In a published opinion the Fourth Circuit sides with the majority of federal circuit courts of appeal that there is no government “clean hands” exception to the receipt into evidence of unlawfully taped telephone calls.
Daniel Crabtree was sentenced to twenty-four months imprisonment for violating the terms of his supervised release. The government established some of the violations by introducing into evidence certain audio tapes that were made by Crabtree’s girlfriend in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510 – 2522 (West 2000 & Supp. 2008). We agree with Crabtree that although the government was not involved in the interception of Crabtree’s conversations, Title III nonetheless prohibited the government from introducing evidence of the intercepted conversations. We therefore vacate the district court’s judgment and remand for further proceedings.
CAAF decision
CAAF has decided United States v. Collier, __ M.J. ___ (C.A.A.F. 2009).
This case presents the question whether the military judge erred in granting the government’s motion in limine prohibiting Appellant’s defense counsel from cross-examining HM2 C, the main Government witness, about an alleged homosexual romantic relationship between her and Appellant and from introducing any evidence of such a relationship.1 While the military judge did permit cross-examination about a close friendship, the defense that Appellant wanted to present was that HM2 C framed Appellant for larceny as a result of their romantic relationship ending badly. Because of this ruling, Appellant was free only to assert the motivation of an angry friend rather than a disappointed lover; as the Government then argued in its closing, the motivation of an angry, vengeful friend “strains all logic; it’s just not credible.”
The military judge’s ruling prevented Appellant’s counsel from fully exploring HM2 C’s bias and motive to misrepresent the truth, and precluded Appellant from presenting her theory of the case. Under the facts of this case, this was a violation of Appellant’s Sixth Amendment right to confront a witness against her.
New CAAF case
CAAF has issued their opinion in United States v. Delarosa, __ M.J. ___ (C.A.A.F. 2009).
In this case the appellant was initially prosecuted in state court. As a result of a granted suppression motion the state prosecution was dismissed. It appears the state court judge found the civilian police did not “scrupulously” follow the suspects exercise of his rights. The Navy took the case and saw things differently. The state judge’s decision is not dispositive in court-martial because it’s a different jurisdiction, different trial, and different judge – not “law of the case,” and not even worthy of deference.
Unlike the state court judge the Navy judge found that the appellant’s confession to civilian police was admissible. The NMCCA agreed the statement was admissible as has a 4-1 majority of CAAF.
Waiver or forfeiture
In United States v. Gladue, __ M.J. ___ (C.A.A.F. 2009), has underscored the importance of understanding the terms of a PTA and the effect on appellate was well as trial issues.
In Gladue the accused, as is common, agreed to waive any waivable motions. The MJ discussed with appellant a number of motions covered by that term, but not those of multiplicity. Appellant tried to raise multiplicity on appeal.
Even though not mentioned on the record, CAAF holds that the language applies to any waivable motion and is not limted to those discussed on the record at trial.
Chessani
The LA Times on line is reporting that the NMCCA, sitting en banc, has:
The Marine Corps appealed the panel’s ruling to the full nine-member court. But the court Tuesday night rejected the appeal without command.
The Marine Corps can continue its appeals or attempt to reinstate charges against Chessani by launching a new investigation under the direction of a new convening authority, a lengthy and complex process.
New from CAAF — Article 32 waiver’s and rehearings.
CAAF issued an opinion today in United States v. Von Bergen,
The granted issue was:
WHETHER THE MILITARY JUDGE ERRED WHEN HE HELD APPELLANT’S WAIVER OF HIS ARTICLE 32 RIGHTS FOR HIS 20 SEPTEMBER 2001 COURT-MARTIAL APPLIED TO HIS 23 OCTOBER 2006 REHEARING.