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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:

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.

Christopher B. Mueller, Laird 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:

On occasion, a military judge will make a clemency recommendation.

In United States v. Coleman, the military judge did just that.

“that the convening authority or any other authority has the authority to dismiss Specification 2 of Charge V, I recommend that such authority dismiss Specification 2 of Charge V.”

Some years ago the AFCCA decided several cases in which it “held” that the CAAF erred in applicable decisions and effectively “overrule” the CAAF. CAAF, of course, told the AFCCA that they cannot overrule the CAAF and should follow CAAF’s decision.  Now it seems the Army Court of Criminal Appeals may be doing something similar; at least that’s the impression given from two recent grants by CAAF.

In United States v. Tovarchavev (link to ACCA) the issue granted is:

WHETHER THE ARMY COURT ERRED, FIRST, IN FINDING THAT THIS COURT OVERRULED SUB SILENCIO THE SUPREME COURT HOLDING IN CHAPMAN v. CALIFORNIA, 386 U.S. 18, 24 (1967), AND THIS COURT’S OWN HOLDINGS IN UNITED STATES v. WOLFORD, 62 M.J. 418, 420 (C.A.A.F. 2006), AND IN UNITED STATES v. HILLS, 75 M.J. 350, 357 (C.A.A.F. 2016), AND, CONSEQUENTLY, IN TESTING FOR PREJUDICE IN THIS CASE USING THE STANDARD FOR NONCONSTITUTIONAL ERROR.

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