U.S. v. Barner, 56 M.J. 131

Core Criminal Law Subjects: Crimes: Art. 134 - Obstructing Justice Pre-2019 offenses

1. court finds evidence legally sufficient to support findings of guilty to every element of obstruction of justice where: (1) military court members could have concluded that an attempt on the part of a senior drill instructor to get trainees to change their story for reasons relating to race was not only wrongful, but in the context of a basic training environment, prejudicial to good order and discipline; (2) appellant’s statement that "I’ll do anything if you don’t tell" and its converse implication of more severe treatment if the trainee did not accede was not consistent with the duties of a senior drill sergeant; (3) appellant’s request that one trainee write a statement against a complaining trainee sufficiently qualified as wrongful; (4) appellant knew his offense against the trainee had been reported and that the trainee was pursuing the matter; and (5) court members could reasonable conclude that a senior drill instructor to whom the initial offense had been reported had a duty to pursue the complaint lodged by the trainees

Trial Stages: Pretrial: Charges and Specifications

1. when the government pleads an offense "on or about," it is not required to prove the exact date, if a date reasonably near is established

Trial Stages: Appeals: Preservation of Error / Plain Error

1. an appellant has the burden of persuading court that there was plain error

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

1. where appellant claims the evidence is insufficient as a matter of law, court must examine the record to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; court is bound to draw every reasonable inference form the evidence of record in favor of the prosecution

Trial Stages: Appeals: Waiver

1. claims that offenses should be consolidated are forfeited by failure to make a timely motion to dismiss, but an appellant may overcome forfeiture by showing that the specifications are facially duplicative, a determination which is made on the basis of the language of the specifications and the facts apparent on the face of the record

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. claims that offenses should be consolidated are forfeited by failure to make a timely motion to dismiss, unless leaving them as two separate offenses rises to the level of plain error
2. claims that offenses should be consolidated are forfeited by failure to make a timely motion to dismiss, but an appellant may overcome forfeiture by showing that the specifications are facially duplicative, a determination which is made on the basis of the language of the specifications and the facts apparent on the face of the record
3. specifications alleging obstruction of justice were not facially duplicative where: (1) each specification alleged an endeavor against a different individual "on or about" a certain date; (2) the record indicates three separate and distinct instances where appellant met with one or both of these individuals and endeavored to dissuade them from pursuing a complaint; and (3) statements directed to one individual were qualitative different from statements directed to the other