Your Court-Martial Appeal and the Date of Your Offense: Why It Matters More Than You Think

If you were convicted at a court-martial, one fact could shape your entire appeal: the date the alleged offense occurred. Not the date of your trial. Not the date you were sentenced. The date of the offense itself.

Congress changed the rules for military appeals in 2021. That change created two completely different systems — one for people whose alleged offenses happened before January 1, 2021, and one for people whose alleged offenses happened on or after that date. Which system applies to you can be the difference between an appeals court that automatically takes a hard look at whether the evidence really proved you guilty, and one that requires you to jump through extra hoops just to get that review started.

This post explains both systems in plain terms, tells you which cases matter, and explains why having experienced appellate counsel makes all the difference.

The Old System: The Appeals Court Had to Personally Convince Itself You Were Guilty

Before January 1, 2021, the rules were straightforward and relatively favorable to the accused. The appeals court — called the Court of Criminal Appeals, or CCA — had to review every conviction automatically. No request needed. No hoops to jump through.

The standard the court applied was simple: Am I personally convinced, beyond a reasonable doubt, that this person is guilty? If the answer was no, the court could throw out the conviction — even if the panel at trial believed otherwise.

This gave the appeals court real power. It could look at everything fresh. It did not have to defer to the panel’s judgment. If the evidence was thin, contradicted, or just did not add up, the appeals court could say so and act on it.

The New System: You Have to Earn the Right to That Review

For offenses that occurred on or after January 1, 2021, Congress tightened the process considerably.

Under the new rules, the CCA does not automatically review whether the evidence was strong enough to convict you. You have to ask for that review, and you have to give the court a specific reason to look. The law calls this making “a specific showing of a deficiency in proof.” In plain terms, you cannot just say “I disagree with the verdict.” You have to point to something concrete — a gap in the evidence, a weakness in the government’s proof on a specific element of the offense, something that shows the conviction may not hold up under scrutiny.

Only after you clear that hurdle does the court actually weigh the evidence. And even then, the court gives some deference to what the trial court found. To overturn a conviction, the appeals court must be “clearly convinced” the guilty finding was against the weight of the evidence — still measured at proof beyond a reasonable doubt, but with a higher bar to clear before the court acts.

Which System Applies to You?

The answer depends on one thing: when did the alleged offense occur?

• Before January 1, 2021 — the old system applies. The CCA reviews your conviction automatically and must personally be convinced you are guilty beyond a reasonable doubt.
• On or after January 1, 2021 — the new system applies. You must assign the error, make the specific showing, and the court gives deference to the trial court’s findings.

The date of your trial, sentencing, or appeal does not matter for this purpose. Only the offense date counts.

The Cases That Prove This Matters

United States v. Patterson, No. ACM 40426 (A.F. Ct. Crim. App. Sept. 27, 2024)

This is the clearest Air Force example of the old system working in an accused’s favor. The Air Force Court of Criminal Appeals set aside Staff Sergeant Patterson’s conviction because the Government failed to prove beyond a reasonable doubt that the offense occurred during the dates alleged in the specification. The court applied the old standard — full, fresh review, no deference — because all the charged conduct predated January 1, 2021. The Government appealed to the Court of Appeals for the Armed Forces, which confirmed that it could only review the Air Force court’s decision for legal errors, not second-guess the factual findings. The conviction stayed set aside.

That case traces the full chain: the Air Force appeals court has real power over pre-2021 convictions, and CAAF cannot override it on the facts.

United States v. Harvey, 85 M.J. 127 (C.A.A.F. 2024)

This is the leading case on how the new system works. The Court of Appeals for the Armed Forces held that under the post-2021 rules, the appeals court must first decide whether the appellant has made that specific showing of a deficiency in proof before it does anything else. If you clear that hurdle, the court weighs the evidence — but still gives deference to what the trial court found. The court cannot presume you are guilty. But you have to give it a concrete reason to look.

United States v. Csiti, 85 M.J. 414 (C.A.A.F. 2025)

This case settled a question that had been floating around: can the Court of Appeals for the Armed Forces conduct its own factual sufficiency review? The answer is no. Under both the old and new systems, CAAF only reviews legal questions. Factual sufficiency — whether the evidence actually proved you guilty — lives entirely at the CCA level. Win it there, or you likely do not win it at all.

What About Charges That Span Both Sides of January 1, 2021?

Some cases involve charges that cover conduct both before and after the cutoff date–which lawyers call “bridge cases.” These situations are complicated, and the answer is not always obvious. Which standard applies can depend on how the charges are drafted, which specific findings are at issue, and how the appellate court decides to handle the split.

If your case involves charges from both sides of that date, you need counsel who understands both systems and can argue whichever standard gives you the best shot at relief.

Why This Matters for Your Appeal

The difference between the old and new systems is not a technicality. It is the difference between an appeals court that owes you a fresh look and one that starts with its hands somewhat tied. Getting this right — identifying which system applies, making the right showing under the right standard, and building the argument that gives the court a reason to act — is exactly the kind of work experienced military appellate counsel does.

Cave & Freeburg, LLP — We Are Actively Litigating These Issues Right Now

Cave & Freeburg currently represents Air Force, Army, and Navy-Marine Corps appellants in active appeals involving Article 66 factual sufficiency challenges — including cases turning on the pre- and post-2021 distinction and cases involving Article 120 convictions under the Mendoza framework.

If you or someone you know has a court-martial conviction and wants to know whether the appeals process could lead to a different result, contact us. We will tell you honestly what we see and what, if anything, can be done about it.

Cave & Freeburg, LLP — Military Defense and Appellate Lawyers www.court-martial.com | (703) 298-9562

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:

• Looking at the context of the word or term in the statute. This means considering the other words and phrases in the statute, as well as the overall purpose of the statute.
• Considering the legislative history of the statute. This includes looking at the bill drafts, committee reports, and other materials that were created during the legislative process.
• Considering relevant case law. This includes looking at how other courts have interpreted similar words and terms in other statutes.

The court will use these tools to interpret the ambiguous word or term in a way consistent with the statute’s overall purpose. Readers should also be aware of Scalia & Garner’s excellent book–Reading the Law, for deep dives into the rules and their complexities. As military defense counsel, we have a copy handy on our bookshelf.

It is important to note that the rules of statutory interpretation are complex and no single rule can be applied to all cases. Courts will often weigh different factors when interpreting a statute, including the plain meaning of the text, the context of the statute, the legislative history of the statute, and relevant case law.

A specific case-–United States v. Cabuhat

Over the last few years, Congress has made life difficult for military defense counsel, actually all lawyers practicting military justice, because of the numerous changes to the definition of what is or is not a crime.

Before a description of Cabuhat, what does (Google) Bard say The phrase “in the presence of” means in the same place as and close enough to be seen or heard. It can be used to describe a physical presence, such as when you are sitting in a room with someone.’

Cabuhat, assigned to the 86th Aircraft Maintenance Squadron, Ramstein, Germany, was sentenced to 30 years confinement in June 2021. He plead guilty to SA of a child, wrongfully photographing the child, and viewing and possessing CP.

Cabuhat was arrested in 2021 after an Air Force Office OSI investigation. Cabuhat SA a child on many times and had photographed the person during the abuse. He also had a large collection of CP.

Cabuhat pleaded guilty to all charges in June 2021. The military judge sentenced him to 30 years (to be served at the U.S. Disciplinary Barracks, Fort Leavenworth, KS), a dishonorable discharge, reduction to E-1, and mandatory SOR.

The central issue in the case is the meaning of “in the prescence of.” This can be important when the parties are separated and are communicating via Skype, WhatsApp, FaceTime or similar application.

In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.

Unfortunately, the military lawyers in the Cabrera case did not do what we would have done. In Cabrera, the military defense counsel properly objected to the second trial but then allowed the second trial to continue without taking any further action to protect his constitutional right to be protected from double jeopardy. They should have filed a Writ and Motion for a Stay of Proceedings pending the resolution of the Writ Petition. That’s what we did in Murillo. Cabrera was convicted and sentenced to confinement. It was on appeal, years later, that the issue of Double Jeopardy was decided in his favor and the charges dismissed. While that decision was being made, Cabrera was in confinement for several years. The case is United States v. Cabrera, __ M.J. ___, 2023 CCA LEXIS 37 (N-M Ct. Crim. App. 2023). See also United States v. Cabrera, 80 M.J. 374 (C.A.A.F. 2020); United States v. Cabrera, No. 201800327, 2020 CCA LEXIS 155 (N-M Ct. Crim. App. May 12, 2020). (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

NOTE: The Double Jeopardy Clause does NOT prohibit the state and the military from prosecuting you for the same offense(s). This concept comes from the Dual Sovereign Doctrine.

Should you be facing court-martial and the charges are dismissed during the trial, please contact us to discuss your options if there is a potential that the prosecution will make a second attempt to prosecute you on the same charges.

mljucmj@court-martial.com for related appellate issues nathan.freeburg@freeburglitigation.com for representation in a second trial

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,

Turning to the merits, we agree that some of the facts and circumstances that Appellant has identified would harm the public’s perception of the military justice system. Indeed, matters (1) through (5) generally concern a point that the Government itself concedes in its brief, namely, that the efforts of trial counsel and SVC “to discourage law enforcement agents from interviewing [the victim’s husband]—an outcry witness—were unwise and inadvisable” because neither side “benefits when [AF]OSI fails to fully investigate a case.” We also specifically agree that the trial counsel, as a judge advocate, should have known better than to discourage an AFOSI investigation into potentially exculpatory evidence.

“Unwise[?]” Really? If it were you the accused doing that, I bet there would be an obstruction or attempted obstruction of justice on your charge sheet.

“[S]hould have known better[?]” If it were you the accused, doing that, the prosecutor would argue that that isn’t a defense.

If you are an accused, how would you feel about this? How about your spouse, your mother, your family, your friends, your neighbors, or your town? Would people believe you will get a fair trial in the military at a court-martial under the UCMJ?

The prosecution was saved in this case because, according to CAAF, the SVC and TC were removed from any further participation in the case, there was very thorough litigation at trial, and there was no intent to prejudice the accused by this “regrettable error,” and, fortunately, it turns out that there was, in the court’s view, no actual prejudice. Of course, SVCs and TCs are not going to concede that your regrettable error should not be punished. They will go all out to have you found guilty.

Appellant claims that his due process rights were violated when his case was not docketed with this court within 30 days of the convening authority’s action as required by United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Finding no error that resulted in material prejudice to Appellant’s substantial rights, we affirm the findings and sentence.” The court reviews the case considering the new post-trial rules for events at the trial stage. The takeaway point are,

• Under the new rules there is no CA action, so Moreno “no longer helps.”

• Under the new procedures, action by the convening authority is no longer required. See R.C.M. 1109(d); R.C.M. 1110(c), (e).

• An accused’s timeline for submitting clemency matters begins when the sentence is announced, not when the ROT is served on him or her. See R.C.M. 1106.

• Additionally, after the convening authority makes a decision whether to take action, the new post-2019 procedures establish additional processing that the Government must complete before an appellant’s case can be docketed with this court. Those steps include the military judge entering the judgment of the court, and the court reporter preparing, certifying, and attaching additional matters to the record of trial for appellate review. See R.C.M. 1111(a) and 1112(c), (f).

• Consequently, the convening authority’s decision on action occurs before the ROT is complete, and preparation of the record necessarily continues after that decision occurs. Depending on the length and complexity of the record involved, we can envision cases in which the court reporter is still transcribing the proceedings after the convening authority’s decision.

• As such, the prior 30-day period from action to docketing, which primarily involved transmitting an already-completed ROT to the Court of Criminal Appeals, now overlays substantive actions such as completing the preparation of the record.”

• The court concludes that 150 days between sentencing and docketing with the CCA is the proper deadline to “protect an appellant’s due process rights.”
• That “rule” established by the CCA now, the court conducts a traditional Moreno

Note, an accused may not automatically get credit for time spent in civilian jail–that needs to be litigated at trial. See United States v. Harris, __ M.J. ___, 2019 CAAF LEXIS 361 (C.A.A.F. 2019).

Which brings us to United States v. Howell, NMCCA, 2019. On appeal, Howell argued that the prosecution wrongly argued to nullify his pretrial confinement credit.

Note: trial defense counsel did not object at trial! So, the NMCCA reviewed for plain error. Slip op. at 10. See United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013); United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017).

The NMCCA cited United States v. Balboa, 33 M.J. 304 (C.M.A. 1991) for the proposition that the sentencing authority may consider pretrial confinement as mitigation or aggravation. Slip op. at 13. Ultimately the NMCCA found no error and gave no relief. But again, trial defense counsel had not objected.

Based on our superior court’s holding in Balboa, we cannot say that it was plain error for the trial counsel to argue that the members should increase their sentence to confinement for the express purpose of nullifying the Allen credit determined by the military judge in order, ostensibly, to permit the appellant to complete five years of treatment. Notwithstanding the C.A.A.F.’s language in Balboa, however, we would not condone a trial counsel’s effort to “appeal” a military judge’s Allen or Article 13 credit determination to members. Our holding might be different in a case where the issue was properly preserved for appeal.

In Balboa, Senior Judge Everett observed:

It seems curious (and more than coincidental) that the confinement adjudged was “68 days, plus 12 months”—not 14 months or 15 months—when the court-martial members knew that their announced sentence to confinement would be reduced by precisely 68 days. This Court does not need an appellate crystal ball to discern the real likelihood that, as a practical result of the members’ action, appellant has been denied the legally required credit for his pretrial confinement.

Balboa, 33 M.J. at 307-08 (Everett, S.J., concurring).

It would seem that the current law may now be that while an accused should get credit for PTC, it is not required if the sentencing authority doesn’t think it appropriate. We’ll have to see if the issue comes up again similar to the facts of Howell with a defense counsel objection. I would imagine Navy TCAP will make much ado about Howell and you may well see the issue again.

So, consider,

• Asking the MJ not to advise the members of any pretrial confinement credit?
• Move in-limine to prohibit TC arguing for nullification? Note, Howell is a retrial case. So it’s possible that there will be significant PTC in any retrial case. My other concern is that the advice to members about PTC gives them information or guidance on what the prior trial adjudged–something not raised in Howell.
• Object!

[T]he provisions of the state’s sex offender registration law (SORNA) [are] unconstitutional under the state and federal constitutions, according to the majority in Commonwealth v. Muniz held that 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

The bottom line here for me is that various courts are now holding that SOR is punitive. I argue that as the reason an accused should be able to raise SOR requirements in sentencing and that the members should not be given a “Talkington” instruction.

[B]ecause the evidence of the charged sexual misconduct was already admissible in order to prove the offenses at issue, the application of Military Rule of Evidence (M.R.E.) 413 — a rule of admissibility for evidence that would otherwise not be admissible — was error. Neither the text of M.R.E. 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case.

M.R.E. 413 otherwise allows the prosecution to introduce evidence of other similar sexual offenses to “prove” a pattern of sexually assaultive behavior. It’s profile evidence (and it’s wrong, but the law allows it). Hills was a members case! As a consequence, the trial and lower appellate courts were limiting Hills to members cases only and refused to apply Hills to judge alone cases–until–

In United States v. Hukill, __ M.J. ___ (C.A.A.F. 2017), the Court decided a Hills trailer–in a military judge alone case. The issue, simply, was–

In Hills, a members’ trial, we held that under Military Rules of Evidence (M.R.E.) 413, the use of charged misconduct to establish an accused’s propensity to commit other charged misconduct in the same case constituted error. 75 M.J. at 352. We granted review in this case to determine whether the rationale of Hills is applicable to a military judge-alone trial and, if so, whether Hukill was prejudiced by the admission of this propensity evidence. We hold the rationale of Hills is equally applicable to both members and military judge-alone trials[.]

In United States v. Grant, ARMY 20150572 (A. Ct. Crim. App. , the Army Court of Criminal Appeals found error based on Hills and Hukill.

On 19 August 2015, trial counsel filed a notice of intent to offer evidence under Military Rule of Evidence [hereinafter Mil. R. Evid.] 413. On 24 August 2015, trial counsel filed a motion in limine for an order admitting evidence under Mil. R. Evid. 413, requesting that the military judge “consider charged sexual offenses in the Charges and Additional Charges as [Mil. R. Evid.] 413 evidence to prove propensity of [appellant] to commit sexual offenses . . . and the [appellant’s] modus operandi and absence of mistake or accident in committing these offenses.” During appellant’s court-martial, the military judge informed the parties of his Mil. R. Evid. 413 ruling: “I will be considering each charge of sexual misconduct as propensity evidence of each of the other charges of sexual misconduct under Article 120.”

Have a case with these issues? Give me a bell (a British expression for a phone call) at 703-298-9562 or drop an eMail to mljucmj@court-martial.com.

Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.

A unanimous court found that the military judge erred.

The accused was charged under Art. 130, UCMJ, with housebreaking by entering the 3rd Brigade Special Troops Battalion motor pool at Fort Benning, Georgia, intending to steal batteries. The motor pool “is a concrete lot completely surrounded by a fence. . . used for the storage and maintenance of the military property, including vehicles.” Slip op. at 3. The CAAF finds that:

Both the commonsense meaning of “structure” within a housebreaking offense and the limiting language of the [Manual for Courts-Martial] leave us with no doubt that an open-air fenced area like the 3rd BTSB motor pool does not fall within the scope of Article 130, UCMJ, because it is not a structure in the nature of a building or dwelling.

Slip op. at 4. According to the court, you can’t take a piece of land, put a fence around it, and then call it a structure similar to a house, building, or home.

United States v. Solis, __ M.J. ___ (N-M Ct. Crim. App. 2016). The case presents discussion of continuing issues relating to the nature of the proof and member (jury) instructions in military sexual assault cases. These types of cases, especially where alcohol is involved present complex challenges to the military defense counsel.

1. Article 120(b)(3)(A) of the UCMJ is unconstitutional because the language “incapable of consenting to the sexual act because she was impaired by . . . alcohol” is unconstitutionally vague.

2. The evidence is factually and legally insufficient to sustain the appellant’s conviction for sexual assault.

3. It was plain error when the military judge admitted evidence of the victim’s prior, unrelated molestation without instructing the members on its permissible use

4. The military judge abused his discretion when he allowed messages from the victim’s Facebook account into evidence without the proper foundation.

5. Certain command, investigative, and prosecutor actions including altering evidence against the appellant amounted to prosecutorial misconduct.

6. Members’ responses at voir dire and existing working relationships with the trial counsel amounted to actual or implied bias.

But, the court concluded: “We find no error and affirm.”

Because of the complexity and politics involved in these cases it would be helpful to consult us as experienced military defense lawyers who has counseled and defended many accused servicemembers.

United States v. Hassoun, No. 201500204 (N-M Ct. Crim. App. 11 August 2016)(unpub.). The issue in this case revolved around proof of desertion. The case has something of an interesting history.

You can read something of the history at these links–here, here, and here.

Hassoun challenge[d] the legal and factual sufficiency of his conviction for desertion with the intent to remain away permanently, asserting that the evidence fails to demonstrate the required intent. Slip op. at 5.

To be guilty of this form of desertion, the appellant must have intended to remain away permanently from his unit, organization, or place of duty. MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.), Part IV, ¶ 9.c.(1)(c)(ii). This intent may have been “formed at any time during the unauthorized absence,” and did not need to “exist throughout the absence or for any particular period of time.” It is sufficient that the appellant formed this intent at some time during the absence. Id. at ¶ 9.c.(1)(c)(i) and (ii). The intent to remain away permanently may be proved by circumstantial evidence. United States v. Oliver, 70 M.J. 64, 66 (C.A.A.F. 2011); MCM, Part IV, ¶ 9.c.(1)(c)(iii). The MCM provides several illustrations of potentially relevant, circumstantial evidence[.]

The conviction and the sentence was affirmed.

Consult with us if you are seeking experienced military lawyer defense counsel for such a case.

This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.

Let’s have the President issue an Executive Order. The Attorney General of the United States issues several manuals for U. S. Attorneys. This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation. It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?

https://www.justice.gov/usam/title-9-criminal

The probable cause standard is the same standard as that required for the issuance of an arrest warrant or a summons upon a complaint (See Fed. R. Crim. P. 4(a)), for a magistrate’ s decision to hold a defendant to answer in the district court (See Fed. R. Crim. P. 5.1(a)), and is the minimal requirement for indictment by a grand jury. See Branzburg v. Hayes, 408 U.S. 665, 686 (1972). This is, of course, a threshold consideration only. Merely because this requirement can be met in a given case does not automatically warrant prosecution; further investigation may be warranted, and the prosecutor should still take into account all relevant considerations, including those described in the following provis ions, in deciding upon his/her course of action. On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a Federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions as well.

And the Criminal Resource Manual.

There seems much in them that could be copied almost word for word.

And perhaps now it is time to adopt Rule 5.1, Fed. R. Crim. Pro., either by statute or executive order? IMHO, the President can amend R.C.M. 405, through the UCMJ art. 36 power, and adopt a rule similar to that found in federal district court.

https://www.law.cornell.edu/rules/frcrmp/rule_5.1

(f) Discharging the Defendant. If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.

Under federal practice, a USA can still prosecute by restarting with new evidence should it arrive later and the prosecution not being barred by the statute of limitations.

Can the actions of military prosecutors raise the specter of Unlawful Command Influence?

Maybe.

That conclusion can at least can be gleaned from the case of United States v. Garcia, decided in 2015 by the Army Court of Criminal Appeals. (United States v. Garcia, No. 20130660, 2015 CCA LEXIS 335 (A. Ct. Crim. App. August 18, 2015)[ https://www.court-martial-ucmj.com/files/2016/03/USvGarcia.pdf].

[W]e first conclude government counsel’s multiple improper references to Army-wide efforts to respond to and prevent sexual assault created the appearance of unlawful command influence. As set forth below in our prejudice analysis, we conclude that the proceedings were unfair and that the government’s persistent and improper references to Army policy were a source of an unfair trial.

There are some additional lessons for prosecutors.

During her rebuttal argument on findings, trial counsel made two improper references to appellant’s exercise of his constitutional rights. First, trial counsel argued with respect to appellant’s decision to call . . a witness[.] The second instance of improper argument occurred during government counsel’s findings argument when she invited the panel to convict appellant because of his exercise of his Sixth Amendment right to confront witnesses against him.

In 2013, SSG G. Garcia stood trial for three specifications under UCMJ art. 120, of rape, a specification of non-consensual oral sex, and a specification of forcible sodomy, of a Specialist (a Soldier two ranks lower than Garcia). In addition he was accused of maltreating four other Soldiers. After a contested trial, before a panel of officers and enlisted members, he was found guilty of the charges involving the Specialist and of two of the maltreatment charges. He was sentenced to a dishonorable discharge, reduction to paygrade E-1, and five years confinement.

The Specialist alleged that the offenses happened between 1 April 2009 and 30 May 2009 at a guesthouse in Germany. Both she and Garcia were assigned to a unit at Wiesbaden, Germany. She did not report these allegations until she had viewed the movie The Invisible War in 2012.

The first trial happened during the height of the media and Congressional attention to military sexual assaults. And President Obama had recently made remarks about the handling of military sexual assault cases. The military judge denied a defense motion to dismiss for unlawful command influence, but allowed substantial voir dire of the panel about potential bias regarding the handling of sexual assault cases.

The Specialist testified at the first trial that she could not report the events that night because she had run out of minutes on her cellphone and she did not have a way to contact anyone. After the alleged assaults she spent the next day with Garcia touring the local town. [link] Over the next few weeks she continued to interact with Garcia, including sending him several personal photographs. About two weeks she accepted an invitation from Garcia to visit him at the town where he was living and spent the day touring the town with him. After this, their “relationship” became distanced. It appears she was seeing another Soldier who she married.

At the time of the alleged assaults the Specialist was serving as a paralegal in the brigade judge advocate office. While in that office she became aware of the investigations into Garcia’s alleged maltreatment of other Soldiers, but she did not report the offenses against herself. She later testified that she did not think she would be taken seriously if she made her allegations at the time of those ongoing investigations.

Civilian military law attorney Philip D. Cave represented SSG Garcia in the appeal of this case before the Army Court of Criminal Appeals. The court set aside the convictions regarding the Specialist, but affirmed the convictions on the two maltreatment charges. The court ordered that the dismissed charges could be retried or a sentence rehearing could be held on the maltreatment charges only.

On 14 March 2016, retrial began for the charges of sexual assault against the Specialist. The commander at Fort Sill determined that it was in the best interest of the Army and the Specialist to have a retrial. Civilian military defense lawyer Cave represented Garcia at this retrial.

Garcia by now had served 860 days of the five year sentence. He had had been confined for a short period at the Mannheim, Germany, confinement facility. He was transferred first to the Navy Consolidated Brig Miramar and then to the Navy Consolidated Brig Charleston. He was released from confinement as a result of the Army court decision, in September 2015.

The retrial began before a panel of officer and enlisted members. The case began with a strange twist. After group voir dire civilian military defense attorney Cave made a motion for a mistrial, which was denied. Cave then made a motion to excuse the whole panel which was granted. After these events, Garcia changed his forum to military judge alone.

At the retrial the Specialist testified substantially the same as her first testimony. There was one very significant change. The Soldier now claimed that she made two phone calls the night of the assault to a friend in Washington state. She agreed that she told Army CID, in August 2012, that she’d only made one phone call the night of the assault which ended abruptly when she ran out of cell phone minutes; she agreed that she testified in an Article 32 hearing in January 2013, that she only made the one phone call; and she agreed that she had testified at the first trial to making only one call that night before the alleged assaults. On retrial, she testified that she called and reported the assault that night to her friend by cellphone. She testified that she did not remember the second call until a few weeks before the retrial began. The person whom she allegedly called did not testify at the retrial. This same friend had not testified at the first trial.

Garcia testified at the retrial. He denied any sexual activity or assault at the guest house as alleged by the Specialist. However, he admitted that he and the Specialist had consensual sex at his home during their second time together several weeks later.

Garcia was found not guilty of the sexual assaults against the Specialist.

After a sentencing hearing on the remaining charges, Garcia was sentenced to a bad conduct discharge, reduction to paygrade E-3, and two months (60 days) confinement. He was given 860 days confinement credit. It should be noted that the maximum possible confinement he could have received on the remaining charges was two years.

The appeal process will begin anew.

West alleges that the Federal Defendants, who with one exception were also U.S. Marine Corps service members at all relevant times, conspired to lodge false complaints and accusations of sexual harassment and sexual assault against him. According to the complaint, such false allegations were personally motivated by a desire to remove West and another individual from their supervisory positions and to obtain favorable transfers.[3]Investigations ensued, and West was court-martialed with respect to the allegations lodged by Rieth, Parrott, and Allen. The allegation that West raped defendant Johnson was not part of the court-martial because an investigator found that such allegation was not credible.[4] At the court-martial in November 2014, defendants Rieth, Parrott, and Allen testified under oath against West, which testimony West alleges was false. West was found not guilty of the majority of charges arising out of the alleged sexual assault and harassment directed towards Parrott, Harper, and Rieth.[6] He was found guilty of a subset of charges based on (1) certain sexually suggestive comments made to Allen[7] and (2) obstructing justice by conspiring with another Marine to provide Allen with copies of their text messages in an attempt to influence her testimony.[8] West alleges that as he was being escorted to serve a sentence of thirty days in confinement as a result of his convictions, “defendants Rieth, Parrott, and Allen, spit upon” him.

It’s a scope of employment and immunity case.

Is a complaining witness acting within the scope of employment when making a sexual assault or harassment complaint?

Is a complaining witness acting within the scope of employment when making a false sexual assault or harassment complaint?

First we look to state law because “Judicial review of the scope-of-employment certification “requires the application of the law of the state in which the employee’s conduct occurred.” Williams, 71 F.3d at 505.”

According to the government, the Federal Defendants, as employees of the Marine Corps, “were required to take the actions necessary to report and address any issue of sexual harassment and/or sexual assault with the appropriate United States Marine Corps officials.”[14] The government also argues that the U.S. Attorney’s certification “was appropriate because a determination had been made by the appropriate federal officials that there was enough credible evidence that the named Federal Defendants were the victims of workplace sexual harassment and/or sexual assault to refer charges to the General Court Martial.”[15] The implicit premise of the government’s argument in support of the scope-of-employment certification is that the Federal Defendants had a legitimate basis for reporting that West sexually assaulted and/or sexually harassed them and then testifying to those allegations at the subsequent court-martial. The government is plainly correct that reporting sexual harassment and/or sexual assault by another Marine is within the reporting Marine’s course and scope of employment. Both parties have submitted Department of Defense documentation regarding the programs established to facilitate the reporting of such allegations, which documentation establishes that the military’s “goal is a culture free of sexual assault, through an environment of prevention, education and training, response capability . . ., victim support, reporting procedures, and appropriate accountability.”[16] West concedes that “sexual assault on a service member is disruptive and destructive to the military and violates its core values in a fundamental way.”[17] The Court agrees that reporting sexual assault and/or sexual harassment would plainly be “primarily employment rooted” and “reasonably incidental to the performance of the employee’s duties.” See White, 419 F. App’x at 442. Likewise, use of a system expressly created by the Marine Corps to receive and handle such complaints is sufficiently “on the employer’s premises” and “during the hours of employment” to satisfy those factors, as would be testimony by a Marine at a court-martial instigated by such reports. However, West alleges that the underlying allegations against him were fabricated, and that making false reports of sexual assault and testifying falsely as to those allegations cannot be characterized as within the scope of the employment of a U.S. Marine Corps service member.[18] West forcefully argues that completely false allegations made by one Marine against another solely on the basis of a personal vendetta and for personal gain would not be “reasonably incidental to the performance of the employee’s duties,” nor could such statements have “the purpose of serving the master’s business . . . to any appreciable extent.” Id.[19]

This case is an excellent read, especially for those of us considering whether they have the right case to sue a complaining witness who makes a false claim of sexual assault or harassment. Such cases are not to be lightly pursued and require a significant degree of proof of falsity. The need for a very thorough package of proof is illustrated in this case.

The Court concludes that West’s evidence consists of factual nitpicking, his personal “spin” on facts which equally tend to suggest that some of the allegations were well-founded, and secondhand credibility determinations. His submission falls well short of carrying his burden to establish as a factual matter that the allegations lodged against him by the Federal Defendants were false[.]

Bottom line, and I think correctly, you are not going to win a civil suit in a she said-he said case or the ubiquitous drunk sex case.

More information here.

One of the areas of frequent abuse is the use of inchoate crimes – primarily here conspiracy. The Army Court of Criminal Appeals has just issued an opinion in a case I defended at trial a couple of years ago. The case was tried in 2012, and the first stage of appeal was decided in February 2015. The next stage is CAAF.

In United States v. Willis, we had objected at trial to a conviction on multiple conspiracies, but the trial judge denied our motion. The prosecution had it’s way in overcharging on this issue. But that didn’t pass muster with the appeals court. In ruling for the defense the court repeated basic principles.

Whether a single conspiracy or multiple conspiracies existed in a given circumstance is a question of fact determined by reference to the totality of the circumstances. See United States v. Fields, 72 F.3d 1200, 1210 (5th Cir. 1996); 16 AM. JUR. 2D Conspiracy § 11 (2002). As the United States Supreme Court noted long ago, “the character and effect of a conspiracy [are] not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole.” United States v. Patten, 226 U.S. 525, 544 (1913).

58 M.J. 824, 826-27 (Army Ct. Crim. App. 2003) (footnote omitted); see also Braverman, 317 U.S. at 53 (1942) (“The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one”); Pereira, 53 M.J. at 184 (“A single agreement to commit multiple offenses ordinarily constitutes a single conspiracy.”). The factors used to determine the number of conspiracies include: “(1) the objectives and (2) nature of the scheme in each alleged conspiracy; (3) the nature of the charge and (4) the overt acts alleged in each; (5) the time and (6) location of each of the alleged conspiracies; (7) the conspiratorial participants in each; and (8) the degree of interdependence between the alleged conspiracies.” Finlayson, 58 M.J. at 827.

In Wilson v. United States, No. 13-CM-564, (D.C. Court of Appeals, 6 November 2014), the appellant sought reversal based abuse of discretion in failing to suppress evidence gained after an illegal arrest.

The court denied the appeal, and in the process cited United States v. Marine, 51 M.J. 425 (C.A.A.F. 1999) to support its decision. Yes, the accused in Marine was a marine.

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.”
3. Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

So how is this admitted “failure” to be reviewed. The court states the standard as a need to show a reasonable probability the motion would be a success, and this must be a substantial chance, not a mere probability. United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001). Without this finding, there is no IAC even if there is an error, because there is no prejudice. However, the dissenters, expressed through Judge King would set aside the findings and sentence on the IAC issue. The court then goes into the ongoing issue of when is a person acting within a official capacity. Finding no substantial likelihood of success on the motion the court finds no harmful and prejudicial error. There has been some discussion already on the requirement to advise a person of their Article 31, UCMJ, right to silence.

Expect to see Spurling at CAAF, potentially as a trailer.

Spurling wins something on the inappropriate sentence – a set aside of the BCD.

Do you have to raise every single motion? No.

Do you have to raise every single motion the client asks you to? No.

I wonder what the MJ would have done if the counsel had asked for a post-trial session to litigate the motion at that time, if for no other reason than to make a record for appeal? We know the MJ can hold such a hearing.

Oh, sorry. Ya gotta read United States v. Stout, decided by ACCA on 25 July 2014.

The accused plead guilty to abusive sexual contact with a 14 year old, indecent liberty with a child, and possession of child porn, all violations of the UCMJ and prosecuted at court-martial. The MJ gave him a BCD and 8. ACCA determined the MJ erred in accepting any of the pleas and set aside the findings and sentence.

As you start to read the opinion you are initially thinking he’s minimizing – as did the court initially think. You’ve been there right, as a military defense lawyer – tell the judge just enough, etc., etc., etc.

The court reminds of the very point about how an accused who minimizes during the providence inquiry doesn’t necessarily have an improvident plea. The court said some single or minor inconsistency may be mere attempts by appellant to rationalize his actions, insufficient to invalidate the providence of the plea. Ultimately Stout’s statements went beyond minimization and set up substantial inconsistencies. I might add that if the facts are as Stout and the stipulation say, this is not a case that should have been prosecuted. But it’s 2014 and . . . (insert rant if you care to). The Army Court of Criminal Appeals (ACCA) cites to United States v. Goodman, 70 M.J. 396 (C.A.A.F. 2011); United States v. Rokey, 62 M.J. 516 (A. Ct. Crim. App. 1995), as authority.

Often an accused is reluctant to admit to a particular aspect of an offense. However, that should not vitiate his guilty plea if he recognizes that the evidence against him will prove the point, and he admits his guilt to the offense. We should not overlook human nature as we go about the business of justice. One aspect of human beings is that we rationalize our behavior and, although sometimes the rationalization is “inconsistent with the plea,” more often than not it is an effort by the accused to justify his misbehavior. A good trial judge can usually sort out the guilty plea and determine if an accused is so pleading because he has committed the offense charged.

United States v. Hall, 73 M.J. 645, 648 (A.F. Ct. Crim. App. 2014).

I always knew there was a reason – other than the case name – why we old timers refer to the Care inquiry (along with other names such as Suzuki credit, Allen credit, etc., etc., etc.). The Court of Appeals for the Armed Forces has over time ensured that before an accused can plead guilty to a UCMJ offense at court-martial, there must be a very careful inquiry of the facts and circumstances. When a military judge fails to conduct a careful inquiry which leads to inconsistency issues, the decision will be reviewed for an abuse of discretion.

I wonder where the TC was in all of this – not putting up a stout defense of the record apparently. Message to TC, you have a duty to your client to protect us from an errant judge. You need not feel intimidated and remain silent when the military judge asks you and the military defense counsel if you want any additional questions.

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). “

2. The military appellate courts have been taking a hard look at the issue of what is or isn’t a “official statement” for purposes of a UCMJ prosecution at court-martial. The NMCCA has evaluated the facts in Brown’s case and determined that the circumstances surrounding his alleged false statements were not official.

While these conflicting accounts paint a confusing picture of what exactly was said, the two clearly had an official duty to keep custody of the appellant. But an informal conversation over sandwiches, one that GySgt T characterized as having nothing to do with his function as the legal officer, bore no bearing to any dialogue necessary to the appellant’s detention. We therefore conclude that this statement lacked officiality within the meaning of Article 107, UCMJ.

3. The more important decision of the court related to errors in the admission of adverse character evidence. Essentially the prosecution offered and the military judge admitted a number of allegations about Brown’s character that is best described as evidence of predisposition. Under the circumstances of this case predisposition evidence is inadmissible.

This case illustrates several points.

1. The defense must be alert and object to efforts by the prosecution to adduce improper character evidence. In this case the military defense counsel do a decent job at trial at objecting and preserving the issues.

2. The prosecution has to be careful in seeking to prove guilt by offering inflammatory character information. When they do that they risk taking a winnable case and making appellate issues.

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

BLUF: We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.

The first step in CAAF’s analysis was to decide that – yes – the evidence was legally insufficient for the finding of guilty. CAAF discussed and affirmed the obvious, that the trial counsel had failed to have evidence admitted showing the underlying drug which comprised the ecstasy in this case was on the controlled substances lists. “In short, the Government’s evidence did not make the essential connections among ecstasy, 3,4-methylenedioxymethamphetamine, and Schedule I.” Slip op. at 8.

The court then turns to the judicial notice issue and immediately “affirm[s] that an appellate court can take judicial notice of law and fact under certain circumstances.” Slip op. at 10. The court cites to a SCOTUS case, the Rules Advisory Committee Notes, and its own case of United States v. Williams, 17 M.J. 207 (C.M.A. 1984).

The court states the problem that AFCCA “took the “extraordinary step” of taking judicial notice of an element not proven by the Government.” Slip op. at 11. Such a step is error and is not justified because there was a failure of notice and opportunity to be heard and the AFCCA judicially noted an element of the offense. Id.

CCA’s and CAAF may still take appellate judicial notice. Future litigation, if trial counsel continue to fail will likely be focused on what the court means with the statement:

a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense.

Similar to what the court said thirty years ago in Williams:

Judicial notice is a procedure for the adjudication of certain facts or matters without the requirement of formal proof. It cannot, however, be utilized as a procedure to dispense with establishing the government’s case.

The court relied heavily on the due process issue and Williams. Williams was a case where the government failed to introduce or get judicial notice of a regulation banning the sale of marijuana.