1. Court-Martial Defense:

A court-martial is a serious matter that can result in a dishonorable discharge, imprisonment, and a ruined career. Cave & Freeburg, LLP brings decades of combined experience to your defense. Their attorneys have a deep understanding of the Uniform Code of Military Justice (UCMJ) and extensive experience navigating the complexities of court-martial trials and appeals. They will:

• Analyze your case: They meticulously examine the charges, evidence, and potential violations of your rights.
• Develop a strong defense strategy: This may involve challenging the evidence, negotiating a plea bargain, or building a case for dismissal.
• Represent you throughout the process: From pre-trial motions to hearings and the trial itself, they will be your relentless advocate.
• Fight for the best possible outcome: Their goal is to secure an acquittal, dismissal of charges, or a reduction in punishment.

2. Non-judicial Punishment (NJP) (Article 15):

Even an NJP, often considered a lesser penalty, can have significant consequences for your career. This is so even though an NJP is not a conviction. There are many civilian employers who are not aware of that distinction and think you have a “conviction.” Also, we now live in a military culture where there is little to zero tolerance for “defects.” The days when the purpose of NJP was to hold someone accountable but also allow them the chance to recover and go on to a better career are mostly gone. Nowadays, that first NJP can result in administrative discharge and a black mark on your military service. As military defense counsel, Cave & Freeburg, LLP can help you navigate this process by:

• Advising you of your rights: Explaining your options under the UCMJ and at an NJP proceeding.
• Negotiating with the command: They can work towards a more favorable outcome, potentially reducing the severity of punishment.
• Preparing a strong response: They will help you craft a compelling response to the allegations, mitigating the potential impact on your record.

3. Administrative Discharge Proceedings:

Facing an administrative discharge, or for officers a board of inquiry, is stressful and uncertain. Cave & Freeburg, LLP can guide you through this process by:

• Understanding the grounds for discharge: There are various reasons for administrative discharge, and they will ensure you understand the specific allegations against you.
• Fighting for a more favorable characterization: The discharge characterization (honorable, under honorable conditions, etc.) significantly impacts future opportunities. They will strive for the most positive characterization possible.
• Exploring all options: In some cases, they may be able to negotiate a retention in service or pursue other avenues to protect your career.

4. Military Justice Matters Beyond Court-Martial:

Cave & Freeburg, LLP’s expertise extends beyond court-martial defense. They can assist with a variety of other legal issues faced by service members, including:

• Line of duty investigations: If injured on duty, they can ensure you receive proper benefits and representation during investigations.
• Security clearance issues: Security clearances are vital for many military careers. They can help you navigate security clearance suspension or revocation proceedings.
• Military separation boards: They can guide you through the separation board process and fight for a fair outcome.

The Cave & Freeburg, LLP Advantage:

• Extensive Experience: With over 43 years of combined experience, they have a proven record of success in complex military legal matters.
• Nationwide & International Reach: They represent clients stationed across the U.S. and overseas, ensuring accessibility regardless of location.
• Relentless Advocacy: They are dedicated to protecting your rights and fighting for the best possible outcome in your case.
• Free Consultation: They offer a free consultation to discuss your situation and explore your legal options.

Taking Action:

Don’t face military legal challenges alone. Contact the military defense lawyers at Cave & Freeburg, LLP today. Their experience allows them to prepare and guide you through the legal process and fight for your rights. We have represented clients from E-1 through O-9. In representing these clients we have looked for creative ways to favorably resolve the issues and get a positive result. Because our loyalty is to the client only, we don’t have to worry about what our uniformed supervisors or colleagues think of our work, strategy, or willingness to appropriately challenge authority. We are not looking over our shoulders to see how our representation might affect our next promotion or assignment–you are the only person we are responsible to. Over the years we have reviewed thousands of law enforcement investigations, FAP reports, and records of trial. With our unwavering dedication and proven track record, you can be confident that you have a strong advocate in your corner.

Under the Uniform Code of Military Justice (UCMJ), military defendants have the right to be represented by counsel at trial. If a defendant believes that their defense counsel provided them with ineffective assistance, they can raise this claim on appeal. The standard for evaluating claims of ineffective assistance of counsel in a court-martial is the two-part test established in Strickland v. Washington, a case decided by the U.S. Supreme Court in 1984.

Under the Strickland test, the defendant must show that their counsel’s performance was deficient and that this deficient performance prejudiced the outcome of the trial. Deficient performance means that the attorney’s representation fell below an objective standard of reasonableness, and prejudice means that there is a reasonable probability that, but for the deficient performance, the outcome of the trial would have been different.

If a military defendant successfully raises a claim of ineffective assistance of counsel, the remedy will depend on the specific circumstances of the case. The remedy could include a new trial, a reduction in sentence, or some other form of relief.

The appeals court will review claims of IAC de novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (To establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel’s performance was deficient and that the deficiency caused prejudice. United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016). You should be aware that appellate courts strongly presume the counsel gave reasonable professional assistance. Also, you must show “a reasonable probability that, but for counsel’s [deficient performance] the result of the proceeding would have been different.” See United States v. Cueto, 82 M.J. 323, 327 (C.A.A.F. 2022).

Your military appellate defense counsel can argue the cumulative effect of various errors when those errors aren’t necessarily significant. Also, in Cueto, the court said that

Perhaps in a rare case an attorney’s overall performance could be deficient even though the attorney did not make specific errors. See, e.g., People v. Raosto, 50 A.D.3d 508, 509, 856 N.Y.S.2d 86 (N.Y. App. Div. 2008) (holding that a defense counsel’s overall performance was deficient where the defense counsel “displayed general carelessness and inattention throughout the trial,” “appeared to be confused,” and was generally unsuccessful in cross-examining witnesses). But such cases usually would arise only when “the defendant can point to a long series of questionable omissions by counsel” that “were not simply the product of human fallibility, but the result of a lack of conscientious effort.” Wayne R. LaFave et al., Criminal Procedure § 11.10(c) (4th ed. 2015).

Ineffectiveness claims can relate to pretrial preparations and advice on guilty plea negotiations, for action or inaction during trial, and for actions or inactions during the sentencing case.

United States v. Scott United States v. Scott, 2018 CCA LEXIS 522 (A.C.C.A., Oct. 30, 2018) aff’d 61 M.J. 79 (C.A.A.F. 2021), is an example of alleged military defense counsel failure during sentencing. But the courts decided the accused was not prejudiced based on the conduct of which convicted and other mitigating evidence in the record.

It is important to note that a claim of ineffective assistance of counsel is a complex legal issue. Anyone facing a court-martial should consult with an experienced military defense attorney to discuss their legal options.

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

The appellant asserts that the attorney-client relationship with his detailed trial defense counsel was terminated without good cause, leaving the appellant legally and factually without post-trial representation. The basis for the appellant’s claim is that substitute counsel failed to establish an attorney-client relationship with the appellant prior to receipt of the staff judge advocate’s recommendation (SJAR).

The court makes clear in footnote 3, that:

This case does not present a situation similar to that addressed by this court in United States v. Hutchins, 68 M.J. 623 (N.M.Ct.Crim.App. 2010), rev. granted, __ M.J. __ (C.A.A.F. June 7, 2010), a trial-level severance issue analyzed under R.C.M. 505 and 506.

In his unrebutted affidavit, Capt F stated that he was detailed in anticipation of Capt M’s departure. Capt F stated that during this post-trial phase, he was in touch with Capt M, and that Capt M informed him that clemency matters had already been submitted. Capt M also informed Capt F that Capt F was needed to receive the SJAR, but that no further substantive action would be required. Capt F was under the impression that the previously submitted clemency request would be reviewed by the CA in due course. Capt F stated that he made no attempt to contact the appellant, believing that his duties were “administrative in nature.”

However, NMCCA did not agree with that view of the situation.

Capt F did have an affirmative obligation pursuant to both R.C.M. 1106(f)(2) and Miller to form an attorney-client relationship with the appellant. He was also obliged to take further action as required to protect the interests of the appellant. The obligation to form the relationship, review the SJAR and take such action as required was not one that prospectively could be limited by what Capt F describes as Capt M’s suggestion that no further action was required other than to receive the SJAR.

As best we can tell there was nothing meaningful that the substitute counsel could have done and he was there effectively for administrative purposes – on the facts of this case, because, “There is no colorable claim to prejudice in this case.”

On being detailed as substitute counsel post-trial the first step should be to make contact with the client. Only then can counsel be certain that . . . .

1. United States v. Curry. This is a BAH case.

The Government proceeded on a theory of a fraudulent marriage as a basis to commit larceny by trick. The court held oral argument in this case and specified two additional issues to the parties.2 Additional pleadings were later filed. After carefully considering the record of trial and the pleadings of the parties, we decide this case based solely on the assigned error and conclude that the evidence was factually insufficient to sustain the finding of guilt as to the charge of larceny, either on the proffered theory of larceny by trick or under a possible theory of wrongful withholding. This case is distinguishable from allowance larceny situations where a properly payable allowance is unlawfully withheld by the servicemember, depriving his dependents of same. See generally United States v. Antonelli, 43 M.J. 183 (C.A.A.F. 1995).

2. United States v. Sager. A urinalysis case.

The appellant was charged with the illegal use of cocaine, distributing cocaine, introducing cocaine onto a military installation and unauthorized absence. Prior to trial, the appellant filed a motion in limine to bar the admission of the drug laboratory report documenting the results of his drug test unless each analyst who participated in the testing testified at trial. The appellant argued that admitting the laboratory report without the testimony of the persons who conducted the testing would violate the Confrontation Clause of the Sixth Amendment. The military judge ruled that the laboratory report, less the cover letter, was non-testimonial hearsay, and thus admissible. Immediately following the military judge’s ruling, the appellant entered pleas of guilty to using cocaine and unauthorized absence, and not guilty to distribution and introduction of cocaine.

The NMCCA found the guilty plea waived the issue of the military judge’s ruling. The court focusses on the IAC issue for an apparent failure to advise the client of the waiver upon guilty plea. The court found the counsel was not ineffective (even assuming he did not advise the client of waiver) based on the overall trial strategy.

United States v. Brown, decided the other day at AFCC raises an issue about waiver of waivable motions in a PTA.

3. United States v. Cheeseman. A Mil. R. Evid. 412 case. Interesting juxtaposition with United States v. Savala.

4. United States v. Westhoven.

The appellant raises three assignments of error. First, he questions whether his plea to negligent homicide can be provident when additional narcotics present in the victim may have been a superseding cause of death in a multiple toxicity case. Second, he questions whether his plea to negligent homicide can be provident when participation in using drugs with the victim is the “sole basis” for the plea. Finally, the appellant avers that his pleas to a general disorder offense for introducing and distributing an analogue of a controlled substance are not provident when the substance charged is not, in fact, a controlled substance.

Army.

1. United States v. Pierce.

Although not raised by appellant, this court recognized the additional issue of whether Charge II, the Article 134 enticement offense, could survive omissions of elemental pleadings and instructions to the members. Based on our review of appellant’s case, we draw three specific conclusions. First, jurisdictional elements of federal statutes are necessary elements which should be plead and must be instructed upon. Second, if a court takes judicial notice of necessary elements, that judicial notice must typically occur on the record at trial and cannot occur sub silentio. Finally, instructional errors related to essential elements are subject to a harmless error analysis. See Neder v. United States, 527 U.S. 1 (1999). Based on these conclusions, we set aside appellant’s conviction as to the portion of the specification of Charge II alleging a violation of 18 U.S. C. § 2442.

The MJ raised the pleadings problem at trial, “In light of United States v. Leonard, 64 M.J. 381 (2007), is it necessary to allege an interstate or foreign commerce element to state an offense when assimilating a federal crime?” But ruled the pleading was sufficient. The court has an interesting discussion of judicial notice on appeal where no judicial notice was taken at trial.

The issue was IAC of trial defense counsel who allegedly failed to investigate and advise on a potential defense of immunity. R.C.M. 704 covers the issues of immunity, tempered by case law. Basically only the GCMCA can grant immunity, but . . . . Cooke v. Orser, 12 M.J. 335 (C.M.A, 1982), is one of the more well known cases about immunity outside the R.C.M. and UCMJ requirements.

The court in Sagona had ordered a Dubay hearing. See United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1986) and United States v. Ginn, 47 M.J. 236 (C.M.A. 1986).

The military judge found that a promise of immunity was made to the appellant by a person the appellant reasonably believed had the authority to make such a promise. Nonetheless, the military judge also ruled that the trial defense counsel’s representation was not so deficient as to overcome the presumption of her competency.

The Dubay judge had found that the appellant did not detrimentally rely on his sergeant major’s offer of immunity. See generally, United States v. Churnovic, 22 M.J. 401 (CMA 1986), for a discussion of the de facto immunity concept. In Churnovic the court had this point.

On several occasions, this Court has rejected claims that prosecution was barred by an assurance given the accused that he would not be prosecuted. For example, in United States v. Thompson, 11 U.S.C.M.A. 252, 29 C.M.R. 68 (1960), a squadron commander’s promise of immunity was held not to bind a convening authority, who neither knew of it nor authorized it. Likewise, in United States v. Werthman, 5 U.S.C.M.A. 440, 18 C.M.R. 64 (1955), the promise of a subordinate did not preclude a commander from instituting prosecution. However, if an official authorized expressly or implicitly by the convening authority has promised a suspect that, in return for certain disclosures, he would not be prosecuted, we have not hesitated to enforce that promise. Thus, in Cooke v. Orser, 12 M.J. 335 (C.M.A.1982), a promise of immunity made by the staff judge advocate of the commander exercising general court-martial jurisdiction precluded prosecution of suspected espionage. Likewise, in United States v. Brown, 13 M.J. 253 (C.M.A.1982), this Court enforced an informal agreement that if the accused gave good information about drug activity, the convening authority would grant him some form of relief. There, the staff judge advocate had made the agreement; and he had been entrusted by the convening authority with that responsibility. Our conclusion was that the Government must abide by an agreement on which an accused has reasonably relied to his detriment.

In Cunningham v. Gilevich, 36 M.J. 94, 100-01 (C.M.A. 1992), the court recognized that it had applied some type of de facto immunity since Cooke, but found that the petitioners in that case had not established that the officer who offered the immunity had done so with apparent authority. In Samples v. Vest, 38 M.J. 482, 486-87 (C.M.A. 1994) the court again recognized the concept of de facto immunity, but held it was not applicable where the appellant had not shown that he had been misled.

United States v. McKeel, 63 M.J. 81, 87 (C.A.A.F. 2006), cert. denied, McKeel v. United States, 549 U.S. 1019 (2006). Interestingly McKeel was cited in Call v. Polk, 454 F. Supp. 2d 475 (W.D. NC 2006), a non-military habeas case.

The NMCCA found a “substantial basis to question the voluntariness of the appellant’s pleas.”

It appears the defense counsel did investigate the existence of an agreement

and confirmed the existence of an agreement from both the sergeant major and the battalion legal officer, but she could not ascertain the actual terms of the agreement. The sergeant major told Capt D the appellant was only provided immunity for the 1 February 2008 suspected marijuana use and possession of the false ID; the legal officer had no recollection of the terms of the agreement.6 Capt D also learned from the sergeant major that he shredded the agreement before he deployed to Iraq.

Subsequently the defense counsel

informed the appellant of what she had learned regarding the immunity agreement and advised him it would be difficult to prove its actual terms.

Providency went ahead and the usual colloquy ensued about any other agreements.

At the DuBay hearing, the appellant explained why he told the military judge there were no other agreements. He testified that on the day of trial, he asked his trial defense counsel if he should tell the judge about the immunity agreement and she advised him not to, because doing so would most likely result in his returning to the brig for “another four month[s]” or a “really long time” while the issue was further litigated and that he probably would lose. . . . When [the defense counsel] later testified, no one asked her if the appellant’s recollection of her advice was accurate, she only testified generically that she advised her client that proving the terms of the agreement would be difficult, and that ultimately he chose to accept the pretrial agreement rather than pursue any relief under the immunity agreement. She also testified that she prepared the appellant for his guilty pleas on the day of trial, but could not specifically remember what they discussed.

NMCCA takes issue with various inconsistencies with the defense counsel’s notes, knowledge of events before trial, what was testified to at the Dubay hearing, and facts adduced in the providency enquiry.

After trial the defense counsel submitted a clemency request which

specifically referenced the immunity agreement: “As stated in the enclosure, Pvt Sagona had an understanding that he would not be charged with future misconduct for drug abuse after he agreed to give information on Marines who were smoking marijuana on restriction.

Here is the nub of NMCCA’s conclusions and reasons for setting aside the findings and sentence.

The existence of the immunity agreement created a potential legal basis for the appellant to seek significant relief, had the issue been litigated at trial. The record is unclear, but it leaves an impression that the appellant’s attorney presented one of two options regarding the immunity agreement: 1) pretend the agreement never existed and get out of jail immediately pursuant to the pretrial agreement, or 2) endure a lengthy and undetermined period of confinement before he could litigate the issues presented by the immunity agreement. If, at the time of his pleas, the appellant had disclosed the existence of the agreement to the military judge, then the existence of the agreement would not necessarily have hindered the military judge from accepting the pleas as voluntary, so long as the military judge could ascertain that the appellant voluntarily waived any potential relief stemming from the immunity agreement in exchange for the protections offered in sentence limitation portion of the pretrial agreement. On the other hand, if the appellant’s decision not to pursue potential relief was influenced by some form of coercion or duress, i.e., protracted and unnecessary imprisonment, then we cannot say that his pleas were truly voluntary. Had this experienced trial judge [LtCol Robinson] received full disclosure on the record of all pertinent facts regarding the appellant’s decision, we have no doubt that he would have been the singularly most qualified person to determine the voluntariness of the appellant’s guilty pleas. Regrettably, the military judge was prevented from doing so due to the misleading information provided by the appellant and his trial defense counsel.

Interestingly the NMCCA concludes, in a footnote, that the trial counsel was unaware of all of this! How can this be? Was the issue never discussed during pretrial negotiations? Did the trial counsel not talk with the command “legal officer?” Was there a term in the PTA to waive all waivable motions? Did that come up at trial? Also, what happened in the SJA shop when they read the clemency petition and read it in conjunction with the verbatim record of trial?

A de facto promise of immunity does not automatically bar prosecution. There is a fact evaluation. In some situations a lesser remedy, such as exclusion of statements and evidence may be applied.

(Jab: had this appellant received a sub-jurisdictional punishment we are unlikely to have heard of this court-martial under the UCMJ.)

Today I’m posting on United States v. Ramon, an unpublished opinion from the NMCCA dated 28 September 2010.

In his sole assignment of error, the appellant alleges that the military judges erred in failing to instruct the members as to mistake of fact as to consent.

The court found that the military judge erred in failing to sua sponte instruct on the affirmative defense of consent.

A military judge has a sua sponte duty to instruct on an affirmative defense if reasonably raised. United States v. Davis , 53 M.J. 202, 205 (C.A.A.F. 2000); R.C.M. 916(d) and 920(e)(3). “The test whether an affirmative defense is reasonably raised is whether the record contains some evidence to which the court members may attach credit if they so desire.” Davis, 53 M.J. at 205 (citation omitted).

Davis was also a Navy case involving the defense of accident and failure to instruct on an LIO.

NMCCA agreed with appellant that the affirmative defense of mistake of fact as to consent was “reasonably raised.”

Moreover, any doubt as to whether the evidence raises an affirmative defense is [to be] resolved in favor of the accused. United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981).

Steinruck (Army) involved an affirmative defense of “Agency,” (It is well established that one who acts in a transaction as a procuring agent is not a seller to that person.).

Applying the harmless error standard the NMCCA affirmed the conviction.

Finally, we note that mistake of fact as to consent was not a theory presented or argued to the members by trial defense counsel. Based on these facts and our review of the entire record, we find that the military judge’s error did not contribute to the appellant’s conviction.

The prosecution had argued two theories: a rape, or rape after the appellant was well aware that his wife had told him to stop but he continued with the sex. Apparently these facts as well as the ‘evidence’ of mistake were contained in an NCIS statement. It does not appear the appellant testified. Remember, an accused does not have to testify in order to present a defense, argue a defense, or ask for an instruction on an affirmative defense. Of course the quality of the evidence may be different. But the point I want to make is a client need not testify to get an instruction.

Oddly the NMCCA found the error may have contributed to the sentence. But they applied United States v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Morffeit, 63 M.J. 40 (C.A.A.F. 2006), and also affirmed the sentence of a DD, TF, three years, and E-1.

Morffeit questioned the proper factors, standards, and ability to reassess a sentence under Sales.

The appellant raised eight errors through counsel and an additional six in accordance with United States v. Grostefon.

One assignment of error warrants discussion, but no relief. Specifically, appellant alleges that the military judge erred by failing to properly instruct the panel regarding appellant’s right during mutual combat to exercise self-defense when the force used against him escalated. Today we find that any error by the military judge was harmless beyond a reasonable doubt and affirm the findings and sentence.

First some basics:

A military judge is required to instruct the members on special (affirmative) defenses “in issue.” Rule for Courts-Martial [hereinafter R.C.M.] 920(e)(3). A matter is “in issue” when “‘some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they choose.’” United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007) (quoting R.C.M. 920(e) Discussion, and United States v. Gillenwater, 43 M.J. 10, 13 (C.A.A.F. 1995)).

I would add that this is a sua sponte duty.

[T]he military judge has a duty to instruct the factfinders on it, regardless of defense theories or requests. Any doubt whether the evidence is sufficient to require an instruction should be resolved in favor of the accused.

United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981).

[A]n affirmative defense is not waived by a mere failure to request it.

United States v. Buckley, 35 M.J. 262, 265 (C.M.A. 1992), citing to United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988).

So in Stanley,

At the close of evidence on findings the military judge gave extensive instructions, including self-defense and defense of another. Based on the evidence presented at trial, appellant now claims that the military judge should have instructed on two additional theories. First, the military judge should have instructed the panel that a mutual combatant has the right to escalate violence under certain circumstances without losing the right to self-defense. Second, the military judge should have instructed the panel that some mutual combatants may be unable to withdraw, and therefore retain their right to self-defense.

The court appears to distinguish Lewis and Gillenwater because a clear distinction is

the fact that none of appellant’s three defense counsel objected to the instructions given, nor asked for any additional instructions.

Basically the court concludes that no amount of additional instructions on self-defense would have lead to an acquittal because the evidence was so overwhelming. That’s essentially the Van Arsdall harmless beyond reasonable doubt issue. See United States v. Roberts, 69 M.J. 23 (C.A.A.F. 2010).

As to affirmative waiver of instructions, usually to LIO’s, see e.g., United States v. Duncan, 36 M.J. 668 (N.M.C.M.R. 1991); United States v. Strachan, 35 M.J. 362, 364 (C.M.A. 1992) (Instructions on lesser-included offenses are required unless affirmatively waived by the defense); United States v. Moore, 12 U.S.C.M.A. 696, 31 C.M.R. 282 (1962)(defense counsel affirmatively indicated his desire to withdraw his request for the instruction and, thereby, waived the instruction). But see, United States v. Taylor, 26 M.J. 127 (CMA 1988)(passive waiver); and United States v. Miergrimado, No. NMCCA 200501128 (N-M. Ct. Crim. App. Feb. 22, 2007), rejecting application of United States v. Waldron, 9 M.J. 811 (N.M.C.M.R. 1980), aff’d, 11 M.J. 36 (C.M.A. 1981), allowing the defense to choose whether to go all or nothing.

United States v. Soucie. In this case NMCCA decides that the military judge failed to adequately inquire into a duress defense on providency.

The accused raised six errors and the NMCCA specified an additional error. The government agreed that a charge under Article 123a should be set aside because it failed to state an offense. This left a sole specification of impersonation.

After carefully considering the record of trial, oral argument, and the pleadings of the parties, we conclude that the military judge erred in failing to adequately inquire into the prospective defense of duress.

This issue was the specified issue from the court, upon which it granted relief.

Court Specified: WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING THE APPELLANT’S GUILTY PLEA WITHOUT INQUIRING INTO THE PROSPECTIVE DEFENSE OF DURESS, WHICH MAY HAVE BEEN RAISED WHEN THE APPELLANT STATED DURING PROVIDENCY: “I FOUND OUT [MY GIRLFRIEND] WAS PREGNANT AND SHE WAS THREATENING TO GET RID OF THE BABY IF I DIDN’T PURCHASE THIS HOUSE FOR HER.”

During the providence inquiry, the appellant told the military judge that he “wasn’t thinking straight at all” when he committed the offense, and he confirmed that his actions were undertaken in order “to buy time.” Record at 63. Moments later, he told the military judge “I found out [my girlfriend] was pregnant and she was threatening to get rid of the baby if I didn’t purchase this house for her.” Id. The military judge inquired further and asked, “She’s holding you hostage. I mean, not literally, emotionally she was holding you hostage; is that right?” Id. The appellant responded, “yes, sir”; no further inquiry was made into the appellant’s statement or his response to the military judge’s question. Id. These statements and responses as a whole raise the specter of the possible defense of duress or coercion — an affirmative defense recognized in RULE FOR COURTS-MARTIAL 916(h), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.).

United States v. Pierce.

The case is before us without assignment of error. We have carefully considered the record of trial and conclude that the specification in support of the Article 134 offense requires modification. We take corrective action below.

This case involves, again, a providency issue.

The specification in support of the Article 134 offense, involving an attempt to transfer obscene matter to a child under sixteen, was charged in such a manner as to implicate Clauses 1, 2 and 3 theories of culpability. The state of the providence inquiry fully supports a provident plea on a theory of service discrediting conduct. We affirm the finding on that basis. The providence inquiry also purports to support a theory under Clause 3, of a non-capital crime, specifically 18 U.S.C. § 1470. However, such a theory of liability cannot be reconciled with the statutory and extraterritorial analysis of the Court of Appeals for the Armed Forces in United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005).

Ultimately the case was resolved on a harm no foul theory.

Tomorrow, NMCCA will hear oral argument in United States v. Hayes:

I. WHETHER THE MILITARY JUDGE’S COMMENTS ON THE RECORD AND DURING THE “BRIDGING THE GAP” DISCUSSIONS WITH COUNSEL REFLECT AN ACTUAL BIAS AGAINST THE APPELLANT’S SEXUAL ORIENTATION, RESULTING IN THE MILITARY JUDGE’S DISQUALIFICATION FROM PRESIDING OVER APPELLANT’S COURT-MARTIAL? II. WHETHER THE MILITARY JUDGE’S COMMENTS ON THE RECORD AND DURING THE “BRIDGING THE GAP” DISCUSSIONS WITH COUNSEL CREATED AN APPEARANCE OF BIAS AGAINST THE APPELLANT’S SEXUAL ORIENTATION, RESULTING IN THE MILITARY JUDGE’S DISQUALIFICATION FROM PRESIDING OVER APPELLANT’S COURT-MARTIAL?

Here is a link to the original NMCCA decision.

A military judge has a sua sponte duty to instruct the members on an affirmative defense if it is reasonably raised by the evidence. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002). Failure by the defense counsel to request the instruction does not waive the error. United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)(citing United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988). Failure by the military judge to instruct on an affirmative defense presents a constitutional error which must be tested for prejudice. For such an error to be deemed harmless beyond a reasonable doubt, the Government must prove that the members would have reached the same verdict absent the error. Neder v. United States, 527 U.S. 1, 19 (1999). We agree with the appellant that the affirmative defense of consent was reasonably raised by the appellant’s sworn testimony. As noted above, the appellant posited a scenario in which the purported victim, Cpl B, was an unambiguously willing participant in the sexual contact alleged, ostensibly even the instigator and aggressor. While trial defense counsel failed to request, remind or insist upon an instruction relative to the affirmative defense of consent, it was not his burden to do so. Rather, it was the sua sponte duty of the military judge. United States v. Guitierrez, 64 M.J. 374, 376 (C.A.A.F. 2007)[.]

What should a trial counsel do if the military judge doesn’t say she will instruct on an affirmative defense and the defense counsel doesn’t ask for it, but the trial counsel believes the evidence raises the affirmative defense? Does the trial counsel have an obligation to raise the question at least?

A former Navy officer who was serving time for hiring someone to kill his wife was killed in a Kansas military prison a month before he was supposed to be released. Officials at Fort Leavenworth say 54-year-old former Navy Lt. Cmdr. Michael Fricke was beaten with a baseball bat by another inmate on July 24. He died Thursday after his family authorized taking him off life support. Fricke had served 16 years of the 30-year sentence for his involvement in the murder of his wife, Roxanne, who was shot to death the parking lot of a Kempsville supermarket in 1988. Fricke pleaded guilty during his 1994 court-martial to avoid a possible death sentence. He said he agreed to pay a man he had been stationed with at Oceana Naval Air Station $25,000 to find someone to kill his wife.

United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000).

Here is subsequent action at NMCCA, in United States v. Fricke, NMCCA 9601293, 2004 CCA LEXIS (N-M. Ct. Crim. App. April 9, 200), rev. granted, 60 M.J. 332, 2004 CAAF LEXIS 914 (C.A.A.F., 2004), aff’d, 60 M.J. 332, 2004 CAAF LEXIS 907 (C.A.A.F., 2004).

A predecessor panel of this court affirmed the findings and sentence in the appellant’s general court-martial. United States v. Fricke, 48 M.J. 547 (N.M.Ct.Crim.App. 1998). Afterwards, our superior court affirmed our decision as to the findings, but set it aside as to the sentence. United States v. Fricke, 53 M.J. 149, 155-56 (C.A.A.F. 2000). The Court of Appeals for the Armed Forces (CAAF) also directed that the case be remanded to the Judge Advocate General for further proceedings in accordance with its decision and United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967) [*2] on the remaining issue of unlawful pretrial punishment, after which the record was to be returned to this court for review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c). The proceedings directed by CAAF have been conducted, and the record is now before us for completion of review. Since the findings in this case have already been affirmed by our superior court, our review on remand is limited to the issue of unlawful pretrial punishment, specifically “the conditions actually imposed on appellant during his pretrial confinement and the intent of detention officials in imposing those conditions.” Fricke, 53 M.J. at 155; see United States v. Quiroz, 57 M.J. 583, 586 (N.M.Ct.Crim.App. 2002)(citing United States v. Riley, 55 M.J. 185, 188 (C.A.A.F. 2001)). We have carefully reviewed the entire record of trial, including the DuBay proceedings held pursuant to the mandate of our superior court. We have also considered the pleadings and supplemental briefs of both parties. Finding that the record does not support the appellant’s assertions of unlawful pretrial punishment, we conclude that the approved sentence is correct in law and fact, and that no error materially prejudicial to the substantial rights of the appellant occurred. Art. 66(c), UCMJ.

In particular I recommend:

Reporting the Alleged Rape On the night of the alleged rape, after returning to the barracks, AN P did not report the rape or tell anyone what happened. Id. at 548. Seaman (SN) M testified, contrary to AN P’s testimony, that the next day, a smiling AN P pulled him aside, told him “we did it,” and explained that she and the appellant had feelings for each other. Id. at 1146. In the next few days, AN P discovered that rumors were spreading about her being in a hotel room with the appellant. Id. at 552, 570, 592. SN C testified that he had previously counseled AN P when she told him she “liked” the appellant, a married man. Id. at 551, 676, 688. When he confronted her with the new rumors and she explained her version of events, he reported it to the command. Id. at 683. AN P testified that she would not report it because she was afraid she would get into trouble or be kicked out of the Navy for being in a hotel room with a married man. Id. at 552-55, 572, 683. AN P testified that about a week after the alleged rape, upon learning she would not get in trouble as long as she was not “cooperating” with the appellant, she reported the incident, when confronted by a SAVI advocate, a chief, and a member of law enforcement. Id. at 572. The manner in which the rape was reported raises further doubt as to why AN P made the accusation.

Capt Kelly Repair and I had an acquittal on similar facts a few months ago. The difference in our case was that the complaining witness had told her friend she might have sex with the client before they actually went on their date. And afterwords she said she wouldn’t mind doing it again. Oddly enough she didn’t tell NCIS that she and the client had stopped off to get condoms on the way to the hotel, and odder still NCIS didn’t ask apparently. It was right there in her statement to a command investigator given several months before the rape report. Fortunately for the client a smart Staff NCO did a good investigation and had her admissions to the condom purchase. Thanks to a very thorough command investigation done by the senior Staff NCO before NCIS got involved the facts were fully developed, including a second motive to lie. Unlike Ruiz the client does have a conviction for adultery, and some other sexual misconduct.

The senior Staff NCO started out thinking he was investigating a fraternization and adultery case with alcohol involved. As a result of his investigation the complaining witness was informed of a summary court-martial. About that time she attended the new and improved sexual assault training and got her road map on how to complain. Sure enough her summary court-martial went away. This is the same case I posted on earlier about the voir dire. In this same case all the members had been to sexual assault training. Eight had been to the same command training within a few months of trial. Six of those eight came away with this “rule” or thought, “one drink means a woman can’t consent,” or words to that effect. The Service HQ representative testified that’s not what they are supposed to be taught. The military judge characterized the trainor as a “rogue trainer,” who obviously didn’t follow the training guide and denied a group challenge. But the military judge gave a very strong curative instruction to the members about alcohol and consent, which I have to admit must have worked. Of course I don’t think it helped the prosecution that the complaining witness had gotten together with the accused a few nights after the later to be alleged rape at the on-base hotel.

The Navy has just announced a program to cut down on sexual assault offenses. Look for more of these types of cases.

Here is a link to the en banc United States v. Hutchins at NMCCA.

Here is CAAF’s journal entry for the certification for 7 June 2010.

No. 10-5003/MC. U.S., Appellant v. Lawrence G. HUTCHINS, Appellee. CCA 200800393. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues: WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING, INTER ALIA, THAT THE MILITARY JUDGE SEVERED THE ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN BASS? WHETHER UNDER R.C.M. 505(d)(2)(B), THE NAVY-MARINE CORPS COURT INCORRECTLY FOUND NO “GOOD CAUSE” ON THE RECORD FOR THE REPLACEMENT OF APPELLANT’S SECOND DETAILED DEFENSE COUNSEL WITH ANOTHER COUNSEL? WHETHER THE LOWER COURT APPLIED THE WRONG STANDARD AND ERRONEOUSLY PRESUMED, WITHOUT ASSESSING, PREJUDICE AND SET ASIDE THE FINDINGS AND SENTENCE, WHERE APPELLANT’S STATUTORY RIGHTS, AND CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE SATISFIED THROUGHOUT TRIAL? Appellant will file a brief in accordance with Rule 24 in support of the certified issues on or before the July 7, 2010. Appellee will file an answer no later than 30 days after the filing of Appellant’s brief. A reply to Appellee’s answer may be filed by the Appellant no later than 10 days after the filing of Appellee’s answer.

Dwight Sullivan says:

CCA opinions, CAAF has held, are inchoate and need not be given effect for 30 days as the government decides whether to seek reconsideration and the Judge Advocate General decides whether to certify the case to CAAF. But CAAF has also held that when a CCA rules to free the accused, that decision will be given effect in 30 days even if the Judge Advocate General does certify the case. So in the case of a confined servicemember who would be freed as the result of the CCA’s opinion, the government must either release him or treat him as a pretrial detainee, thus providing the right to an IRO hearing. See generally United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997).

In Miller the AFTJAG certification included the following issues:

II. WHETHER OPINIONS OF THE AIR FORCE COURT OF CRIMINAL APPEALS ARE SELF-EXECUTING. III. WHETHER, PRIOR TO THE EXPIRATION OF THE TIME PERIOD DURING WHICH RECONSIDERATION CAN BE REQUESTED OR CERTIFICATION BY THE JUDGE ADVOCATE GENERAL SOUGHT, AN AIR FORCE COURT OF CRIMINAL APPEALS OPINION IS “FINAL” OR REMAINS “INCHOATE.” IV. WHETHER ARMY OFFICIALS PREMATURELY SOUGHT TO RELEASE APPELLEE FROM THE UNITED STATES DISCIPLINARY BARRACKS BASED UPON UNOFFICIAL NOTIFICATION BY DEFENSE COUNSEL OF AN INCHOATE, NON-SELF-EXECUTING OPINION OF THE AIR FORCE COURT OF CRIMINAL APPEALS WITH NO DIRECTION FROM A CONVENING AUTHORITY AS REQUIRED BY ARTICLE 66(e), UCMJ.

Miller held that:

The decisions of this Court and the court below are “not self-executing.” United States v. Kraffa, 11 M.J. 453, 455 (CMA 1981)(holding that “[a] decision of the Court of Military Review, 2 however, is not self-executing. The court issues no mandate, but its decision is forwarded to the convening authority for further action.”); United States v. Tanner, 3 M.J. 924, 926 (ACMR 1977) (holding that “neither the decisions nor the opinions of appellate courts, however, are self-executing; cases must be returned to those lower levels where officials and parties can be ordered to implement the court’s judgment”). The Judicial Branch is not an executive arm but depends on the Judge Advocate General and lower officials to execute its orders.

CAAF then discusses what happens depending on what action TJAG decides to take, or not take.

There have been instances in the past where a commander has refused to follow the judicial order to release an accused. See e.g. Frage v. Moriarity.

The release does not mean that Hutchins cannot be re-confined if CAAF reverses NMCCA. In that event the issue will be what credit, if any, he receives for “confinement served” between the date of this release and his being reconfined. The answer may be none.

A Camp Pendleton Marine whose murder conviction was recently overturned was released Monday after serving four years in prison for a major Iraqi war crimes case, his lawyer said. An emotional Sgt. Lawrence Hutchins III vowed to be the best Marine he could be while he waits for the U.S. Court of Appeals for the Armed Forces to review his case, defense lawyer Babu Kaza told The Associated Press after leaving the closed hearing at Camp Pendleton.

Navy Times reports:

The Navy’s self-reporting requirement for drunken driving arrests will fundamentally change as a result of a recent military court ruling, the Navy’s top lawyer said. A new rule is in the works that will continue to require sailors to notify their command about civilian arrests, but commanding officers will not be able to use that information to seek disciplinary action or a court martial, said Vice Adm. James Houck, the Navy Judge Advocate General.

in which he sought to have the court overturn the ruling of the military judge at his sentencing rehearing to the effect that Life Without Parole (LWOP) is not an authorized sentence in his case. Alternatively, the petitioner requested that this court direct the military judge to grant the petitioner’s motion allowing him to waive his right to clemency and parole following sentence, so that he can more easily reach a pretrial agreement with the convening authority.

On direct appeal the NMCCA set aside the original findings of guilty to negligent homicide and the sentence.

A rehearing on sentence was authorized for the remaining guilty finding of false official statement.

The CA found a rehearing was impractical and approved a punishment of “no punishment.”

The issue was prosecution sentencing evidence of other acts toward the victim which had not been charged. Appellant alleged that the military judge failed to conduct a proper 1001 and Mil. R. Evid. 403 balancing test. NMCCA disagreed.

NMCCA found that the military judge properly evaluated the evidence as to its admissibility, including a 403 balancing. The court further found that the military judge correctly gave a limiting instruction to the members on how they could use the additional evidence.