Weiss new developments 2010 opd (1)

Artillery Strong!
Criminal Law New Developments
1-4 November 2010
MAJ Mason Weiss
.Crimes, Defenses & Pleadings .Arguments
.Evidence .Writs
.Findings and Sentencing .Jurisdiction
.Self-Incrimination .Unlawful Command
.Search & Seizure Influence
.Discovery and Production
.Pretrial Restraint/Speedy Trial
.Post-Trial Procedures
.6th Amendment
.Pleas/PTAs/Court Martial Personnel/Voir Dire/Challenges

Artillery Strong!
Criminal Law New Developments
1-4 November 2010
MAJ Mason Weiss
.Overview of Appellate Law
.Article 66 Review/Article 69 review/Article 62 appeals
.ACCA/CAAF/Supreme Court
.Published vs. Unpublished opinions
.Factual/Legal Sufficiency, Grostefon,
.P1/P2, Dubay hearings, Ginn factors,
.GAD/DAD
.Commissioners, Mac Squires
.Final Orders, etc.

Artillery Strong!
Crimes, Defenses & Pleadings
U.S. v. Sutton 68 M.J. 455 (CAAF 2010) [D-2]
Accused ultimately convicted of soliciting his 10 yr old
stepdaughter to engage in indecent liberties by paying her
$20 for lifting up her shirt and showing him her chest.
Issue: Can an accused be charged with soliciting a minor to
engage in indecent liberties when the victim and the person
solicited are one in the same?
Held: One cannot solicit a minor to be both the offender and
the victim. Charging this misconduct as a solicitation fails to
state a defense.

Artillery Strong!
U.S. v. Lubasky 68 M.J. 260 (CAAF 2010) [D-3]
CW4 Casualty Assistance Officer steals money from widow.
Issue: Can the unauthorized use of another person’s credit and
bank cards constitute larceny against the person (as opposed to
the financial institution?)
Held: Unauthorized use of credit cards ≠ larceny against the
individual, they are only against the bank. But unauthorized
uses of debit card and cash from bank acct. can = larceny
against account owner even though MCM suggests otherwise.
Failure to properly identify victim in a larceny spec creates
a fatal variance! MJ did not fix it by E&S = too bad!

Artillery Strong!
U.S. v. Bradley 68 M.J. 556 (ACCA 2010) [D-4]
Soldier distributes ecstasy. Charge sheet alleges drug was “a
Schedule I controlled substance.” Govt did not introduce any
evidence to establish the E is a controlled substance.
Issue: If drug is not identified in the statutory language of Article
112a—can charge sheet’s allegation that drug is a controlled
substance sustain a conviction when no other evidence exists
re: the controlled nature of the substance?
Held: Info on charge sheet ≠ evidence! Controlled nature of a
substance = an essential element & some evidence must be
entered to sustain a conviction! Because none was entered,
findings set aside! [MJ could have taken notice but didn’t!]

Artillery Strong!
Evidence
U.S. v. Yammine 69 M.J. 70 (ACCA 2010) [E-4]
Marine Drill Instructor charged with forcible sodomy of 14 y/o
boy in the library bathroom. Govt introduces MRE 414 evidence
of deleted file names indicating child porn was on his computer
—but no images.
Issue: Did MJ err admitting unassociated file names suggesting
gay sex acts with pre-teen and teen boys under 414 or 404b?
Held: Yes. File names ≠ proper propensity evidence under MRE
414 nor any purpose under 404b! Possession or attempted
possession of child porn ≠ MRE 414 b/c appellant himself was
not physically present with the children depicted (not pics
anyway!). 404b ≠ propensity! Unfair prejudice/probative value!

Artillery Strong!
Findings & Sentence
U.S. v. Trew 68 M.J. 364 (CAAF 2010) [F-2]
MJ convicts appellant of 1 spec of ABC on child under 16 as an
LIO of the alleged indecent acts specifications. Appellant had
wrongfully touched his stepdaughter on at least two occasions.
MJ did not clarify the date of the occasion which he convicted
him of—just said it was for the “one occasion.”
Issue: Was MJ’s clarification following his announcement of
sentence ambiguous?
Held: Yes! Charges dismissed with prejudice by CAAF! The
NMCCA cannot properly review factual sufficiency of a case if it
can’t be sure which spec it’s reviewing! MJ should have
specified which occasion he convicted appellant of!

Artillery Strong!
Findings & Sentence
U.S. v. Saxman 69 M.J. 364 (N.M.C.C.A 2010) [F-5]
Appellant charged with possessing 22 videos of child porn, 4 of
which had confirmed children in them. MJ failed to instruct
members that if they convicted appellant of possessing less than
all 22, they had to specify which ones. Panel convicts appellant
of possessing 4, but does not specify which 4.
Issue: Whether a finding by E&S that appellant possessed only 4
videos instead of 22 can be properly reviewed under Art. 66?
Held: No! “Without knowing of which 18 videos the appellant
stands acquitted, we cannot now affirm a conviction for any
video without creating a risk that doing so will overturn the
members’ not guilty findings.” Dismissed with Prejudice!

Artillery Strong!
Findings & Sentence
U.S. v. Eslinger 69 M.J. 522 (ACCA 2010) [F-7]
Appellant was a highly decorated combat veteran who was a
HALO qualified Special Forces Medic with 18 yrs of service.
Convicted of possessing 1,700 images of child porn.
Issue: Whether govt rebuttal witnesses in sentencing provided
proper testimony?
1. Δ puts on aggressive sentencing case with several witnesses
giving strong evidence for retention. MSG and CPT say they
want to bring him on next deployment & already have his bags
packed to go.
2. Govt calls 5 rebuttal witnesses: MAJ, SGM, MSG, COL &
CSM. 4/5 have little to no knowledge of appellant!

Artillery Strong!
Findings & Sentence
3. All 5 Govt witnesses say they would not want to deploy with
him and that there is no place for him in the Army.
4. Govt witnesses answer questions about the basis of their
opinions, talk about his prior misconduct, and no reference to
their personal knowledge or interaction with him.
5. Defense only objects that 1 of the govt witnesses was
cumulative.
ACCA says:
-Remember RCM 1001(b)
-U.S. v. Ohrt: need foundation, no euphemisms for discharge!
-U.S. v. Horner: opinion cannot be based solely on severity of
offense.
-U.S. v. Griggs: allows for Δ retention evidence and govt rebuttal

Artillery Strong!
Findings & Sentence
ACCA says:
1. Govt witnesses had little to no foundation! Cannot use
rebuttal witnesses if they don’t know the guy!
2. UCI: one witness kept talking about what BN CDR wanted.
3. Repeated impermissible practice of asking witnesses to
explain the basis of their opinions! [can only do this on X-exam
or redirect].
4. Rebuttal testimony outside parameters of Griggs: cannot say
Soldier does not belong in the Army! Difference between willing
to serve with him again vs. calling for a punitive discharge.
Holding: Clear and obvious error—but no prejudice [plain error
standard!]. CAAF has granted review.

Artillery Strong!
Self Incrimination
Maryland v. Shatzer 130 S.Ct. 1213(2010) [G-2]
Δ in prison for unrelated sex offense when investigators
questioned him about molesting his son. He asks for a lawyer.
2.5 years later, police discover new evidence, visit him in a new
prison, and question him again. This time, he waives his rights
and admits. Δ then makes an motion to suppress for Edwards
violation since he had invoked right to counsel 2.5 years before.
Issue: Does the protection by Edwards have a temporal time
limit? Does post-conviction incarceration count as custody for
Miranda/Edwards purposes?
Holding: Sup Ct announces 14 day time limit. Post-conviction
incarceration does not count as custody for Edwards purposes.

Artillery Strong!
Self Incrimination
U.S. v. Kirk (ACCA July 28, 2010) [G-7]
Article 62 appeal by govt at Fort Sill. Accused was charged with
desertion. MJ decided to suppress statements that accused
made to 1SG when getting in-processed back into the unit and
accused said he didn’t get married because he was afraid he’d
get caught for being AWOL if he did so.
Issue: Did MJ err by ruling that accused’s statement to 1SG was
inadmissible due to lack of Article 31 warnings?
Holding: Yes. 1SG wasn’t acting in law enforcement or
disciplinary capacity. Routine administrative question to
inprocess accused was not likely to elicit an incriminating
response!

Artillery Strong!
Search & Seizure
U.S. v. King 604 F3d 125 (3rd Circ. 2010) [H-8]
Appellant meets Ms. Larkin on child porn website & they trade
child porn. A moves in and begins sexually molesting Larkin’s
daughter, Peanut. Police track them down because of an
unrelated child porn investigation on Peanut. When police get
there to arrest Larkin, she gives her consent to seize her
computer. A shows police where the computer is but tells police
they cannot take the hard drive because he owns it. Police take
it anyway. Search shows child porn on it.
Issue: Whether the holding of Georgia v. Randolph that a
present and objecting resident can override another resident’s
consent to search a home applies to the seizure of a computer.
Holding: No. Randolph rule doesn’t apply to personal property.

Artillery Strong!
Search & Seizure
(Inspections)
U.S. v. Ayala 69 M.J. 63 (CAAF 2010) [H-15]
SJA proposes policy that if you piss hot you will get retested.
Patent reason is to help in criminal prosecutions. Wing CDR
adopts proposal, but states a different purpose in his
implementing memorandum—fitness, security, and GO&D.
Ayala tests + for the marijuana on a random UA & tested
positive on subsequent UAs for marijuana & cocaine.
Subsequent UAs were part of a re-inspection policy.
Issue: Whether a follow-up urinalysis after a positive UA was a
lawful inspection under MRE 313?
Holding: Yes, based on the facts of this case. Ct will not impute
to the CDR every instance of advice or expression by his SJA.

Pleas, PTAs, Court-Martial Personnel
Panel Selection, Voir Dire, Challenges
U.S. v. Flores __ MJ__ (AFCCA 2010) [M-8]
Guard at Camp Bucca had a sex with Iraqi detainee. Also gave
him a video camera to film things. Mixed plea/JA Video related
to contested charges. During closing, TC argues that accused
corroborated video by her providence inquiry testimony.
Issue: Can the TC argue in the findings portion of contested
case about what the accused said during her providence
inquiry?
Holding: No! Can’t use GP to prove offenses to which the
accused pled NG, unless accused has pled NG to an LIO and
the greater offense has common elements. (no plain error).
Artillery Strong!

U.S. v. Morton 69 MJ 12 (CAAF 2010) [M-9]
Death of the closely related offense doctrine. Appellate courts
used to be able to affirm a finding of guilty to a closely related
offense that the govt had not charged. Morton pled guilty to 2
forgery specs of a sick call slip. Service-ct found plea inquiry
insufficient & instead affirmed for False Official Statement.
Holding: CAAF unanimously reverses. Affirming a GP based on
admissions to an offense to which an accused has not pleaded
guilty and which is not an LIO violates due process & fair notice.
The “closely related offense” doctrine does not exist in the text of
the UCMJ or the MCM. Not supported by any congressional act
or presidential authority. Just a creation of case-law
Artillery Strong!

U.S. v. Morton 69 MJ 12 (CAAF 2010) [M-10]
Practice Points:
1.With Govt & MJ consent, an accused may knowingly and
voluntarily plead to an amended spec, even if the amended spec
creates a separate offense.
2.“We have held that a convening authority’s entry into a PTA
that calls for pleas of guilty to offenses different from those
charged is the functional equivalent to an order referring those
offenses to court-martial.
3. Also, RCM 603(d) allows major changes to charge sheet if
accused does not object.
Artillery Strong!

U.S. v. Ferguson 68 MJ 431 (CAAF 2010) [M-10]
Accused talks on line with police officer posing as 14 y/o boy.
Sends nasty pics, masturbates and ejaculates in front of
webcam, etc. Pleads Guilty to indecent exposure. Claims on
appeal that it was not in public view & there was no evidence
that a 3rd person saw it or that accused intended anyone besides
the [undercover officer] to see it.
Issue: Did MJ err by accepting guilty plea?
Standard of Review: “When an accused pleads guilty, there is
no requirement that the govt establish the factual predicate of
the plea.
Artillery Strong!

U.S. v. Ferguson 68 MJ 431 (CAAF 2010) [M-10]
1. The factual predicate for a GP is sufficiently established if the
“factual circumstances” as presented by the accused objectively
support the plea.
2. An MJ’s acceptance of a GP will not be reversed based on the
“mere possibility” of defense.
3. The court will not “speculate” post-trial about the existence of
facts that might invalidate an accused’s guilty plea.
Holding: Court rejects cases dealing with “willful” and “public
view” elements—because those were from contested cases!
Here, the accused pled guilty and agreed that his actions were in
public view. “By doing so, appellant relinquished his right to
contest π’s theory on appeal unless ROT shows matter
inconsistent with his plea.”
Artillery Strong!

U.S. v. Hayes NMMCA, rev. granted by CAAF [M-20]
Male Sailor pleads guilty to indecent acts with another male. MJ
allegedly makes comments during BTG that “Marines should not
have to live with people like Seaman Hayes.” NMCCA says
comments, assuming arguendo they were true, were not that big
a deal. CAAF has set aside and ordered Dubay hearing or
something to find out exactly what MJ said.
Lesson: Be careful about letting an MJ run his mouth at BTG
about stuff that has nothing to do with the trial, etc. because TDS
may try to use it later. If there is an issue, get back on the record
immediately, or do a post-trial Art. 39a session and clear it up!
Artillery Strong!

U.S. v. Kirk (ACCA, 28 July 2010) [M-21]
Govt files Art. 62 appeal challenging MJs decision to suppress
accused’s statements to his 1SG. ACCA sua sponte comments
on the MJ recusing himself. MJ had said, “I do not expect to get
overturned on this issue..and if the case comes back..I will be
the MJ on the case..that is going to hear the facts in the future,
including the 1SG’s testimony…but if you want to appeal you are
welcome to. Is that your final decision govt? I just want to make
sure.
Holding: ACCA finds these “gratuitous comments” intemperate,
injudicious, and inconsistent with the impartial role he is to play
in the court-martial, creating at least the perception of unfairness
to the parties, potentially undermining public confidence in his
judicial role.
Artillery Strong!

Artillery Strong!
Sixth Amendment-Confrontation
U.S. v. Smith (ACCA, 28 July 2010) [N-1]
Coast Guard Academy Cadet pleads NG and gets convicted of
disobeying orders, sodomy, extortion, indecent assault. Gist of
case is that Smith got victim (female cadet) to have sex with him
by threatening to reveal that she had allegedly consensually sex
with several enlisted coast guardsmen. Smith wanted to X-examine
her that she falsely claimed sexual assault before (for
these acts with the enlisted CGs). Victim had first told him these
were non consensual acts, then told him she’d lied & that they
were consensual. Smith wants to bring this in under MRE 412,
constitutional exception. MJ refuses to allow it, but permits to
inform members that victim’s secret “was information that if
revealed could have an adverse effect on her career, etc.”

Artillery Strong!
Sixth Amendment-Confrontation
U.S. v. Smith (ACCA, 28 July 2010) [N-1]
Issue: Whether Smith was denied his right to confront victim?
Holding: No. 3-2 opinion. Citing Banker [2004 CAAF case], Ct.
concludes Smith failed to demonstrate evidence was relevant,
material, & vital to his defense. Ct. assumed that V’s sex with
enlisted members was relevant, but that it was neither material
nor vital to Smith’s defense. Issue was V’s credibility & MJs
remedy allowing Smith to present evidence that V had lied about
an important secret was adequate.
Smith has appealed to Supreme Court..argues CAAF should
have reviewed MJs decision de novo, not for abuse of discretion.

Artillery Strong!
New Developments
Questions?

Weiss new developments 2010 opd (1)

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