No. 10-0668/AF. U.S. v. Jerrod D. NUTT. CCA S31600. Review granted on the following issues: WHETHER, UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT’S SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE. WHETHER TRIAL DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE ADMISSION OF THE DRUG LABORATORY REPORT AT TRIAL FORFEITED THE CONFRONTATION CLAUSE ISSUE, AND, IF SO, DID ADMISSION OF THE DRUG TESTING REPORT CONSTITUTE PLAIN ERROR? WHETHER THE CONFRONTATION CLAUSE WAS SATISFIED BY TESTIMONY FROM DR. TURNER. IF DR. TURNER’S TESTIMONY DID NOT ITSELF SATISFY THE CONFRONTATION CLAUSE, WAS THE INTRODUCTION OF TESTIMONIAL EVIDENCE NEVERTHELESS HARMLESS BEYOND A REASONABLE DOUBT UNDER THE CIRCUMSTANCES OF THIS CASE IF HE WAS QUALIFIED AS, AND TESTIFIED AS, AN EXPERT UNDER M.R.E. 703? No. 10-0461/NA. U.S. v. Joseph A. SWEENEY. CCA 200900468. Review granted on the following issues: WHETHER, IN LIGHT OF THE UNITED STATES SUPREME COURT’S RULING IN MELENDEZ-DIAZ v. MASSACHUSETTS, 557 U.S. ___, 129 S.CT. 2527 (2009), THE ADMISSION INTO EVIDENCE OF THE NAVY DRUG SCREENING LABORATORY URINALYSIS DOCUMENTS VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. WHETHER TRIAL DEFENSE COUNSEL’S OBJECTION TO THE DRUG LABORATORY REPORT CONSTITUTED A VALIDCRAWFORD OBJECTION. IF NOT, THEN WHETHER TRIAL DEFENSE COUNSEL WAIVED OR FORFEITED THE CONFRONTATION CLAUSE ISSUE, AND, IF FORFEITED, WHETHER ADMISSION OF THE REPORT CONSTITUTED PLAIN ERROR.

United States v. Messias. The court set-aside a finding of guilty to because of an inadequate providence inquiry. No sentence relief granted.

While the providence inquiry establishes facts sufficient to demonstrate that the appellant drove on base and that he believed the driving to be wrongful, there are no facts developed which establish either the invalidity of the appellant’s license, if any, or in the alternative, his failure to have a valid license in his possession. We cannot infer either eventuality from this record. We are left with a substantial basis in fact to question this plea and conclude the military judge abused his discretion in accepting this plea on these facts. We note that the appellant remains convicted of a nearly four-month period of unauthorized absence from a combat arms unit and possession of a substantial quantity of marijuana aboard a Marine Corps base. We are satisfied beyond any reasonable doubt that the sentencing landscape, now devoid of the motor vehicle operator’s license violation, has not substantially changed.

United States v. Mendoza. Here the issue was not raised by appellate counsel. But the court found that there was insufficient facts within the providence inquiry as to all of the victims. No sentence relief.

A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of attempted sale of military property, sexual harassment, assault consummated by battery, and sale of military property, in violation of Articles 80, 92, 108, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 892, 908, and 920. The appellant was sentenced to confinement for nine months, forfeiture of all pay and allowances, to be fined $500.00, reduction to pay grade E-1, and a bad-conduct discharge.

These cases above would indicate the trial counsel is not protecting the record. Judge Mc in his article about xxx pointed out how the trial counsel should be monitoring the elements and the evidence. The cases above are examples of how the trial counsel’s failure to protect the record might have cost the government a sentence reassessment and reduction. When the military judge asks, ‘does either side request additional enquiry,’ this is when trial counsel should be saying, ‘yes,’ with some proposed questions.

United States v. Magincalda, is a post-trial speedy review case. 857 days from date of trial to CA action. No relief.

A general court-martial with enlisted representation convicted the appellant, contrary to his pleas, of conspiracy to commit larceny, housebreaking, kidnapping, false official statements, and murder; wrongful appropriation; and housebreaking, in violation of Articles 81, 121, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, and 930. The members sentenced the appellant to 448 days of confinement, the period of pretrial confinement, and reduction to pay grade E-l. The convening authority (CA) approved the sentence as adjudged and ordered it executed.

United States v. Sperlik. A urinalysis case. The court specified an sentencing instruction issue not raised by appellate counsel. The court found no error in the errors raised, but found error and reversed on a failure to give correct instructions to the members.

The record demonstrates that the policy of zero tolerance, and its seemingly reflexive relationship to a punitive discharge in the minds of the members, carried into deliberations. Specific, clearly curative instructions were required in order to dispel the members’ biases or improper consideration of that policy. None were given by the military judge.

Interestingly there was quite a bit of discussion and some instructions on collateral effects of not adjudging a punitive discharge.

The civilian defense counsel noted the need to dispel the members’ bias to the point of asking for a mistrial during the Article 39(a) session and alternatively for an instruction explaining zero tolerance. But rather than ensuring the members’ biases were eradicated, the military judge only provided a minimal instruction — that he could not instruct on zero tolerance and only reminded them that it should not be considered. The military judge further abused his discretion, in light of the specific questions presented by the members, in failing to fully address their concerns about administrative processing.

United States v. Fields,

The appellant assigns four errors: 1) the evidence was legally and factually insufficient to support the findings of guilt to Charge II and all specifications thereunder; 2) the indecent language offense is a lesser included offense of the attempted indecent language to a child offense and should be dismissed as multiplicious; 3) the appellant’s masturbation to an unknown party via webcam over the internet was factually insufficient to constitute indecent public exposure; and, 4) the military judge improperly denied the appellant’s motion to dismiss Charge II and all specifications thereunder as an unconstitutional invasion of his privacy. We have carefully considered the parties’ pleadings and the record of trial. We find merit in the appellant’s second assigned error and set aside the guilty finding for Specification 3 of Charge II (indecent communications) and dismiss the specification. Additionally, though not assigned as error, we find that the specifications alleging indecent exposure (Charge II, Specification 1) and indecent acts (Charge II, Specification 2) constitute an unreasonable multiplication of charges; accordingly, we set aside the guilty finding for Specification 1 of Charge II and dismiss the specification. We are satisfied that the remaining convictions and the sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant remains.

Supervisor expert testified about his role in the peer review process; passing reference to the testing chemist’s conclusion did not violate the Confrontation Clause; circuit also distinguishes Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S.Ct. 2527 (2009), in United States v. Turner,” _ F.3d _ (7th Cir. Jan. 12, 2010) (No. 08-3109) A recent Seventh Circuit case revisits the issue of expert testimony which refers to the analysis of another expert. Is the Confrontation Clause violated when a supervisor testifies about the peer review process, his role in confirming reviewing the test results, and the initial results of another chemist? On the fact of the case, the circuit concluded there was no constitutional violation.

Briscoe is to be decided relatively soon. The betting is that some of the justice’s may persuade others to change the M-D outcome. Justice Sotomayor seemed active during oral argument.

This 7th Circuit case seems to fit Harcrow and Magyari, and vice-versa.