U.S. v. Browning, 54 M.J. 1

First Principles: Constitutional Matters: Right to Present a Defense

1. the constitutional right to present evidence to defend against charges is not absolute

Core Criminal Law Subjects: Crimes: Article 77 - Principals Pre-2019 offenses

1. a co-conspirator may be held criminally responsible under theory of vicarious liability pursuant to Article 77, UCMJ, even though the Article does not specifically deal with vicarious liability of co-conspirator and even if not specifically alleged in the pleadings

Core Criminal Law Subjects: Crimes: Article 81 - Conspiracy Pre-2019 offenses

1. a co-conspirator may be held criminally responsible under theory of vicarious liability pursuant to Article 77, UCMJ, even though the Article does not specifically deal with vicarious liability of co-conspirator and even if not specifically alleged in the pleadings

Core Criminal Law Subjects: Evidence: Balancing

1. if a military judge weighs and excludes evidence under MRE 403, an appellant has the burden of coming forward with conclusive argument that the military judge abused his discretion; the military judge will not be reversed unless there is a clear abuse of discretion

Core Criminal Law Subjects: Evidence: Other Acts

1. MRE 404(b) is a rule of inclusion rather than exclusion; it permits admission of relevant evidence of other crimes or acts unless the evidence tends to prove only criminal disposition
2. there is a three-pronged test for admissibility of other acts evidence: (1) such evidence must reasonably support a finding by the court members that appellant committed prior crimes, wrongs, or acts; (2) such evidence must make a fact of consequence more or less probable; and (3) the probative value must not be substantially outweighed by the danger of unfair prejudice
3. the standard of proof for the first prong of the test for admissibility of other acts evidence is quite low and is satisfied by evidence upon which the trier of fact could reasonably conclude that the accused committed the act sought to be introduced; this prong was satisfied where co-actor testified that the events did take place and that they were in furtherance of the conspiracy
4. admissibility of evidence of other acts, crimes or wrongs committed by appellant’s co-conspirators is not evaluated under MRE 404(b), but instead is evaluated under MREs 401, 402, and 403

Core Criminal Law Subjects: Evidence: Relevance

1. admissibility of evidence of other acts, crimes or wrongs committed by appellant’s co-conspirators is not evaluated under MRE 404(b), but instead is evaluated under MREs 401, 402, and 403

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. if a military judge weighs and excludes evidence under MRE 403, an appellant has the burden of coming forward with conclusive argument that the military judge abused his discretion; the military judge will not be reversed unless there is a clear abuse of discretion
2. where military judge properly balances probative value of alleged threats made by appellant against their prejudicial impact, articulates the reasons for admitting/excluding the evidence, and gives carefully crafted limiting instructions, the military judge will only be reversed for clear abuse of discretion

Trial Stages: Appeals: Waiver

1. failure to object to clarifying instructions on vicarious liability, given after appellant objected to initial instruction, waived any defect in the instructions in the absence of plain error
2. where military judge makes a preliminary ruling excluding evidence, but invites counsel to renew the request for the evidence at a later time, failure to renew the request at the proper time waives the issue in the absence of plain error
3. where defense sought to introduce evidence allegedly showing that appellant was framed by another individual, and where military judge made a preliminary ruling excluding evidence, but invited counsel to renew the request for the evidence at a later time, appellant did not preserve the issue by requesting the judge to reconsider the preliminary ruling; if, however, the issue was preserved, appellant failed to show how military judge abused his discretion in excluding the evidence where: (1) evidence was of minimal relevance; (2) defense failed to establish a link between the evidence in issue and a co-actor’s alleged scheme to frame appellant; and (3) proffered testimony fell short of supporting the defense theory that appellant had been framed