U.S. v. Mack, 65 M.J. 108

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. when the legality of an order is at issue, the issue must be decided by the military judge, not the court-martial panel
2. when the defense moves to dismiss a charge on the grounds that the charged order was not lawful, the military judge must determine whether there is an adequate factual basis for the allegation that the order was lawful
3. the military judge erred by treating the legality of a pretrial restriction order as a mixed question of fact and law to be resolved by the court members; as a matter of law, the presence of factual questions did not relieve the military judge of his responsibility to decide, as a preliminary matter, whether the order in the charged breaking restriction offenses was lawful

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

1. the prosecution is not required to establish the identity of co-conspirators or their particular connection with the criminal purpose; the agreement in a conspiracy need not be in any particular form or manifested in any formal words; it is sufficient if the agreement is merely a mutual understanding among the parties; the existence of a conspiracy may be established by circumstantial evidence, including reasonable inferences derived from the conduct of the parties themselves
2. the evidence was legally sufficient to support appellant’s conviction for conspiracy to obstruct justice with an unknown female by threatening to kill a witness or the witness’s family if that witness testified at appellant’s court-martial, despite appellant’s contention that the evidence did not show that any other person other than he mailed a package to the mother of the witness with a threatening note; the third threatening phone call made by appellant and an unknown female asking whether the mail was received, and accompanied by further threats to the mother of the witness, provided sufficient evidence for a rational factfinder to have found appellant guilty of this offense beyond a reasonable doubt; the members could have concluded that the unknown female recorded on the third telephone call was coaching appellant in an attempt to make their threats credible

Core Criminal Law Subjects: Crimes: Article 90 - Assaulting or Willfully Disobeying Superior Commissioned Officer Pre-2019 offenses

1. when the legality of an order is at issue, the issue must be decided by the military judge, not the court-martial panel
2. when the defense moves to dismiss a charge on the grounds that the charged order was not lawful, the military judge must determine whether there is an adequate factual basis for the allegation that the order was lawful
3. if the military judge rules that a specific set of words would constitute a lawful order under a specific set of circumstances, that is a preliminary ruling that does not relieve the prosecution of its responsibility during its case-in-chief of proving beyond a reasonable doubt the facts necessary to establish the elements of the offense
4. the military judge erred by treating the legality of a pretrial restriction order as a mixed question of fact and law to be resolved by the court members; as a matter of law, the presence of factual questions did not relieve the military judge of his responsibility to decide, as a preliminary matter, whether the order in the charged breaking restriction offenses was lawful
5. the essential attributes of a lawful order include: (1) issuance by competent authority; (2) communication of words that express a specific mandate to do or not do a specific act; and (3) relationship of the order to a military duty; an order is presumed lawful, and the accused bears the burden of rebutting the presumption

Trial Stages: Pretrial: Charges and Specifications

1. a servicemember who violates one or more of the conditions of pretrial restriction may be charged with an offense under the UCMJ

Trial Stages: Pretrial: Pretrial Restraint

1. a servicemember facing criminal charges may be subjected to various forms of pretrial restraint pending court-martial, including confinement, arrest, restriction, or conditions on liberty
2. a person accused of a crime retains the presumption of innocence and may not be punished pending trial; if the conditions of pretrial restraint are more rigorous than necessary to ensure the presence of an accused at trial or to prevent additional misconduct, the accused may receive credit against the adjudged sentence

Trial Stages: Pretrial: Pretrial Restriction

1. a pretrial restriction order generally includes specific conditions designed to prevent additional criminal misconduct and maintain accountability of the accused; various conditions may be ordered if they are reasonably necessary to protect the morale, welfare, and safety of the unit (or the accused), to protect victims or potential witnesses, or to ensure the accused’s presence at the court-martial or pretrial hearings; the commander may order the servicemember to remain within specified limits, to report periodically to a specified official, and not to associate with specified persons
2. pretrial restriction is not punishment and may not be used as such

Trial Stages: Pretrial: Pretrial Punishment

1. pretrial restriction is not punishment and may not be used as such
2. a person accused of a crime retains the presumption of innocence and may not be punished pending trial; if the conditions of pretrial restraint are more rigorous than necessary to ensure the presence of an accused at trial or to prevent additional misconduct, the accused may receive credit against the adjudged sentence

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s error in submitting the question of lawfulness of the conditions of pretrial restriction to the court members was harmless with respect to appellant’s convictions for violating the requirement to muster at specified times and the prohibition on operating or riding in an automobile, where those restrictions were lawful as a matter of law; appellant failed to rebut the presumption of lawfulness by demonstrating that the muster requirement or the automobile prohibition did not fulfill a military duty or was otherwise unlawful

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

1. an appellate court considers the legality of an order under a de novo standard of review
2. if the military judge erroneously submits the issue of legality of an order to the members, an appellate court considers on appeal whether a record has been established that permits it to resolve the question of legality without further proceedings
3. the standard for determining the legal sufficiency of evidence supporting a guilty verdict is 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
4. an appellate court reviews de novo appellant’s claim that he was denied his due process right to a speedy post-trial review and appeal
5. (with respect to the overall post-trial and appellate period, an appellate court reviews a claim of a due process violation under the test set forth in United States v. Moreno, 63 MJ 129, 135 (CAAF 2006)

Miscellaneous Matters: Speedy Trial: Post-Trial

1. even assuming an unreasonable length of time and a timely assertion of the right to speedy appellate review, appellant in this case has failed to establish either that he was denied timely review of a meritorious appellate issue or that he otherwise suffered cognizable prejudice; accordingly, no further relief beyond that granted at the court below was warranted