Results-Appellate

Winning your appeal is a daunting task, especially when you argue to the court that there is insufficient evidence to prove the crime. This was the case for an Air Force E-6, who was investigated for wrongfully possessing and distributing CP (illegal images).

The investigation began with a cyber-tip from the service provider, Tumblr, to the local sheriff's Office. Then the Sherriff continued with search warrants, the seizure of all his computers, media devices, and cell phones; and forensic examinations of the seized items. At which point, the Air Force Office of Special Investigations got involved and took an interest in the case. After a thorough search for evidence, the client was told the investigators couldn't find any illegal images. The client had been fully cooperative throughout the investigations and consistently asserted his innocence. The investigators returned everything they had taken and searched to him and told him there would be no prosecution.

The AFOSI and the local base legal office continued to investigate, and ultimately, a charge of "possession" was referred to a general court-martial. Because of government failures in not preserving "forensic extractions of Appellee’s electronic devices" much evidence was lost. The government tried to blame the client for their lack of good investigative practices. At trial, the testimony from defense and prosecution experts showed, the missing evidence could have helped prove the client's innocence.[1] Because of this loss of evidence, the military judge "abated" the proceedings.[2] That effectively meant the case couldn't go forward and the prosecution would have to drop the case. The government appealed the military judge's decision and the Air Force Court of Criminal Appeals (AFCCA) said the military judge was wrong.

Once the trial restarted, the defense pointed out all the problems in defending the case because of the lost evidence and pointed out holes in the government's case. Despite that, the military judge entered a finding of guilty to possession of an illegal image. His sentence included 14-months confinement and a dishonorable discharge.

At this point, Cave & Freeburg was hired to take on his appeal. Our brief pointed out the discrepancies and holes in the government case and raised several other legal issues to justify setting aside the conviction and dismissing the charges. In a thorough, detailed written opinion, the AFCCA agreed with us, and the charges were dismissed with prejudice.

Result: No conviction, no retrial,[1] no sex offender registration, restoration to rank with the possibility of back-pay.

[1] We always have a defense expert available to assist and possibility testify in any case where there is electronic, digital evidence. Any good military defense lawyer will want that expert at trial.

[2] Abating a court-martial means putting the trial on hold. This is rare, but can happen if crucial evidence is missing or the judge feels a fair trial can't be held.

[3] Dismissal of charges because of factual insufficiency is the equivalent of a finding of not guilty on the evidence. The Constitution's Double Jeopardy Clause prohibits a retrial for those same offenses.

What About Government Appeals

Navy-Marine Corps Court of Criminal Appeals

We have experience with government appeals, which effectively challenge the military judge’s decision in your favor. 

The military judge suppresses statements to the Naval Criminal Investigative Service (NCIS) and the client’s superior. We make some new law

The O-4 officer client was prosecuted for a sexual assault on a colleague who was also his superior in the operational chain. During the investigation, NCIS wanted to avoid the client exercising his right to counsel and silence, which they’d have to advise him of if an agent did an interview. So, NCIS and the superior (the victim) decided to make a pretext phone call [4] from the victim to the client to see if they could get a confession.

The military judge decided that the arrangement violated the client’s rights because the victim gave no Article 31 warnings when he should have, there was a “clear senior-subordinate relationship,” between the victim and the client, and the victim used his rank and authority to coerce a statement effectively.

The Navy-Marine Corps Court of Criminal Appeals (NMCCA) agreed with us, in published opinion, when we argued that the military judge's ruling was correct.

Result: Government Appeal Denied.

[4] DoJ on Pretext Call. A victim-suspect pretext call can be admissible in evidence. The linked article is old and not military, but it helps understand the concept of pretext phone calls as an investigative tool.

Creative Appellate Advocacy: An extraordinary writ mid-trial wins dismissal for double jeopardy[5]

We were representing a Marine E-6 accused of domestic violence. The alleged victim had vociferously declined to cooperate and be a witness at trial. The prosecution proceeded to trial anyway rather than compel her testimony. After the prosecution came toward the end of its evidence, the victim and her lawyer decided the trial wasn't going well and said that now she wanted to testify. We objected. After back and forth between the defense, prosecutors, and judge, the judge ordered a mistrial. A mistrial means the prosecution could start again--with a new jury and having had total exposure to the defense case for the client.

As expected, the Government started again. We asked the military judge to dismiss the charges because the continued prosecution would violate the Constitutional prohibition against Double Jeopardy at the second trial on the exact charges. The military judge denied our motion.

We file for an extraordinary writ.

The first question the NMCCA had was whether they had jurisdiction to decide the writ. Following the U.S. Supreme Court, NMCCA decided they could act and did so by finding that the Double Jeopardy Clause prohibited the second prosecution.

Result: No trial, no conviction, Honorable Discharge.

We used existing law to establish a better practice for abatement, dismissal, or mistrial cases. Uniformed lawyers didn't do what we had, and a client suffered.

Lance Corporal Cabrera was prosecuted at a general court-martial for a sexual act against a victim by force and another while the person was asleep. He served a little over two years of his seven-year confinement before the Navy-Marine Corps Court of Criminal Appeals overturned his conviction. Had his uniformed military defense counsel filed a writ, he would not have served any confinement because the Government violated the prohibition against Double Jeopardy in his case.

[4] This case is also a good lesson for military defense counsel at trial with a military judge who is deciding whether to abate or dismiss the proceedings, or grant a mistrial.

You can win on legal issues

Army Court of Criminal Appeals

In United States v. Nievesvelle, the Army Court of Criminal Appeals set aside the client's multiple convictions for sex offenses because the military judge made a prejudicial mistake in not allowing the defense to cross-examine the complaining witness properly. 

Military Rule of Evidence 412 (MRE) is designed as a "rape shield" law. The rule prevents sexual character evidence being introduced against an alleged victim unless it is relevant and Constitutionally required for the accused to get a fair trial. On appeal, we challenged the military judge's decision to prohibit the defense asking questions that he prohibited after a MRE 412 hearing. The Army Court of Criminal Appeals agreed and set aside the conviction. The court did permit the Government to do a retrial. (Retrials after a conviction are not barred by the Double Jeopardy Clause.)

Result: No conviction, no sex offender registration, returned to duty with an E-3 rate but being paid as an E-1.

[Go to these page s for more information about pay and rank after you win a retrial and about the how retrials work.

For more appellate wins, go to "Results."