U.S. v. Ashby, 68 M.J. 108

First Principles: Constitutional Matters: Due Process

1. due process requires that a person have fair notice that an act is criminal before being prosecuted for it
2. in assessing whether a facially unreasonable delay has resulted in a due process violation, an appellate court weighs the following four Barker [407 US 514 (1972)] factors: (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice

Military Justice Personnel: Prosecution Function: Trial Counsel

1. it is blackletter law that a trial counsel may not comment on the accused’s exercise of his constitutionally protected rights, including his right to remain silent; in this case, trial counsel’s comments in his opening statement referencing appellant’s invocation of his right to remain silent were improper

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. RCM 915(a) vests military judges with the discretion to declare a mistrial when manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings; however, the discussion to the rule advises caution, noting that mistrials are to be used under urgent circumstances, and for plain and obvious reasons; because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions
2. in this case, the error in the trial counsel’s comments referencing appellant’s invocation of his right to remain silent was harmless beyond a reasonable doubt, where the military judge took immediate corrective action which included giving the members a curative instruction, requiring trial counsel to redact her statements, asking each member individually whether he could follow the military judge’s instructions, and reminding the members at the close of the evidence about appellant’s absolute right to remain silent; because the military judge’s actions following the improper comments adequately cured the error and rendered it harmless beyond a reasonable doubt, a mistrial was not an appropriate remedy

Military Justice Personnel: Court Members: Generally

1. absent evidence to the contrary, the members are presumed to follow the military judge’s instructions

Military Justice Personnel: Convening Authority: Referral

1. RCM 306(b) provides that allegations of offenses should be disposed of at the lowest appropriate level of disposition; however, under RCM 306 and RCM 407, a convening authority exercising general court-martial jurisdiction has wide discretion to choose among a variety of options in disposing of a charge, including referring a charge to a general court-martial
2. convening authority’s decision to refer obstruction of justice charges to a general court-martial, rather than a lesser forum, after appellant was acquitted of the original charges, was not an abuse of his discretion, where the obstruction charges were initially referred before appellant was acquitted on the original charges, appellant was a commissioned officer, and the charges involved obstruction of justice relating to an exhaustive investigation into the deaths of 20 people and extensive damage to military property

Military Justice Personnel: Convening Authority: Disqualification

1. under Article 1(9), UCMJ, an accuser is an individual: (1) who signs and swears to charges; (2) who directs that charges nominally be signed and sworn to by another [type two accuser]; or (3) who has an interest other than an official interest in the prosecution of the accused [type three accuser]; an accuser may not convene a general or special court-martial, nor may he refer charges to a court-martial; convening authorities are not disqualified from referring charges by prior participation in the same case except when they have acted as accuser
2. the test for determining whether a convening authority is an accuser is whether he was so closely connected to the offense that a reasonable person would conclude that he had a personal interest in the matter; personal interests relate to matters affecting the convening authority’s ego, family, and personal property, and a convening authority’s dramatic expression of anger towards an accused might also disqualify the commander if it demonstrates personal animosity; a personal interest has been found to exist where, for example, the convening authority is the victim in the case, where the accused attempted to blackmail the convening authority, and where the accused had potentially inappropriate personal contacts with the convening authority’s fiancée
3. a commander who convened a command investigation board [CIB] to investigate an aircraft mishap involving appellant and who forwarded the CIB’s report to the servicing legal office for consideration of appropriate charges was not a type two, nominal accuser disqualified from serving as the convening authority, where the commander’s action was consistent with the performance of his duties, and the charges ultimately preferred against appellant were not investigated by the CIB, were not encompassed in the commander’s forwarding endorsement to the CIB, and were independently preferred
4. a commander’s involvement in a preliminary investigation of an aircraft mishap involving appellant did not make him a type three, de facto accuser disqualified from serving as the convening authority, where the commander’s interest in the investigation appeared to have been wholly official [interest in an incident and the investigation thereof is not personal - it is in fact the responsibility of a commander], and where the frequency of his contact with the command investigation board [CIB] or the number of times that he reviewed the draft CIB report did not reflect a personal rather than a professional interest

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

1. evidence that appellant, after the aircraft he piloted severed the cable supporting a gondola, causing the deaths of 20 passengers, discussed with his co-accused what to do with the videotape of the flight, removed the tape from the aircraft, and then gave it to his co-accused several days later knowing that he was going to get rid of it, was sufficient to establish the elements of conspiracy, as that offense was incorporated into a charge of conduct unbecoming an officer

Core Criminal Law Subjects: Crimes: Article 133 - Conduct Unbecoming an Officer and Gentleman Pre-2019 offenses

1. the criminal conduct sought to be punished by an Article 133, UCMJ, offense is the act of committing dishonorable or compromising conduct, regardless of whether the underlying conduct constitutes an offense under the UCMJ
2. where the government chooses to incorporate separate offenses into a Article 133, UCMJ, charge and where the military judge has instructed on the elements of those offenses, an appellate court we will analyze the legal sufficiency of the Article 133, UCMJ, offense by determining whether there was legally sufficient evidence supporting all of the elements instructed upon by the military judge
3. appellant’s conduct, as a captain in the United States Marine Corps who was the pilot of an aircraft that had been involved in an international incident which caused the deaths of 20 civilians, in concealing potential evidence and assisting in its destruction, was sufficient to establish all the elements of conduct unbecoming an officer
4. one of the elements of obstruction of justice under Article 134, UCMJ, is that appellant knew or had reason to know that there would be “criminal proceedings” pending; although the MCM does not define “criminal proceedings,” in this case, nothing supports appellant’s contention that his conduct cannot be sustained as conduct unbecoming an officer because the criminal investigation that was impeded was foreign rather than domestic or military
5. appellant, who took a videotape from a mishap aircraft that had severed a cable supporting a gondola, causing the deaths of 20 passengers, who secreted the tape in his quarters, and who eventually provided the tape to his co-accused several days later knowing that he was going to get rid of it, had fair and reasonable notice, as required by due process, that his obstruction of an Italian criminal investigation could amount to conduct unbecoming an officer; undoubtedly, conduct of a United States military officer designed to prevent authorities of an allied foreign nation from investigating a fatal accident on its national soil involving United States military personnel may constitute service discrediting conduct and conduct unbecoming an officer and a gentleman; first, an experienced officer in appellant’s position would or should have been on notice of the NATO SOFA provisions between the United States and Italy that impose a duty on both parties to assist in carrying out investigations, collecting and producing evidence, and handing over objects related to an offense; as such, appellant had notice that his conduct in failing to hand over a videotape that he knew would have evidentiary value in an Italian investigation violated his official duties; second, acts of dishonesty and deceit are prohibited by illustration in both Article 133, UCMJ, and Article 134, UCMJ; third, common sense supports the conclusion that appellant was on notice that his conduct violated the UCMJ; appellant, as a seasoned officer and aircraft pilot, understood that under the circumstances his actions would reflect poorly upon him as an officer and would discredit the service [but note: “Our ruling today is limited to factual situation before the court - whether an Article 133, UCMJ, conduct unbecoming an officer and a gentleman specification is legally sufficient where the conduct underlying the charge was incorporated by reference as an Article 134, UCMJ, obstruction of justice charge, and where the military judge’s instruction linked the obstruction of the foreign criminal proceeding to conduct that was ‘directly prejudicial to good order and discipline in the Armed Forces or being directly discreditable to the Armed Forces.’”]

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

1. evidence that appellant had reason to believe there would be a criminal proceeding pending against him when he removed a videotape of his flight after the aircraft he piloted severed the cable supporting a gondola, causing the deaths of 20 passengers, and during the time appellant secreted the tape in his quarters until his co-accused destroyed the tape after learning that they were under criminal investigation by Italian authorities, was sufficient evidence to establish the elements of obstruction of justice, as that offense was incorporated into a charge of conduct unbecoming an officer
2. one of the elements of obstruction of justice under Article 134, UCMJ, is that appellant knew or had reason to know that there would be “criminal proceedings” pending; although the MCM does not define “criminal proceedings,” in this case, nothing supports appellant’s contention that his conduct cannot be sustained as conduct unbecoming an officer because the criminal investigation that was impeded was foreign rather than domestic or military

Core Criminal Law Subjects: Evidence: Balancing

1. at sentencing, even if admissible as aggravation under RCM 1001(b)(4), the evidence must pass the balancing test of MRE 403; MRE 403 states that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence

Trial Stages: Merits: Mistrial

1. RCM 915(a) vests military judges with the discretion to declare a mistrial when manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings; however, the discussion to the rule advises caution, noting that mistrials are to be used under urgent circumstances, and for plain and obvious reasons; because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions
2. in this case, the error in the trial counsel’s comments referencing appellant’s invocation of his right to remain silent was harmless beyond a reasonable doubt, where the military judge took immediate corrective action which included giving the members a curative instruction, requiring trial counsel to redact her statements, asking each member individually whether he could follow the military judge’s instructions, and reminding the members at the close of the evidence about appellant’s absolute right to remain silent; because the military judge’s actions following the improper comments adequately cured the error and rendered it harmless beyond a reasonable doubt, a mistrial was not an appropriate remedy

Trial Stages: Sentence and Punishment: Evidence

1. at sentencing, trial counsel may present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty; evidence in aggravation includes evidence of psychological impact on any person who was the victim of an offense committed by the accused; even if admissible as aggravation under RCM 1001(b)(4), the evidence must pass the balancing test of MRE 403; MRE 403 states that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
2. admission of testimony of three family members of victims who died in gondola mishap, offered in support of government’s case in aggravation of conduct unbecoming an officer for concealing a videotape of the flight of the aircraft that severed the gondola’s cable, was not an abuse of discretion, where the testimony was limited to include only the effect that the missing videotape had on the witnesses’ ability to process his or her loss; while the testimony was prejudicial to the defense - after all that is the general purpose of evidence in aggravation - the evidence was not unfairly prejudicial; in its restricted form, the testimony was brief and rather straightforward; although the record reflects that the witnesses were visibly emotional during their testimony, they were not disruptively so

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. Article 66(c), UCMJ, vests in the courts of criminal appeals broad authority to determine the findings and sentence that should be approved; in conducting its sentence appropriateness review under Article 66(c), UCMJ, a court of criminal appeals has broad discretion to grant or deny relief for unreasonable or unexplained post-trial delay; the power to review a case for sentence appropriateness is vested in the courts of criminal appeals, and not in CAAF, which is limited to errors of law

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the power to review a case for sentence appropriateness is vested in the courts of criminal appeals, and not in CAAF, which is limited to errors of law

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, the error in the trial counsel’s comments referencing appellant’s invocation of his right to remain silent was harmless beyond a reasonable doubt, where the military judge took immediate corrective action which included giving the members a curative instruction, requiring trial counsel to redact her statements, asking each member individually whether he could follow the military judge’s instructions, and reminding the members at the close of the evidence about appellant’s absolute right to remain silent; because the military judge’s actions following the improper comments adequately cured the error and rendered it harmless beyond a reasonable doubt, a mistrial was not an appropriate remedy

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

1. in reviewing for the legal sufficiency of evidence, an appellate court takes the facts in the light most favorable to the government and asks whether those facts would permit a reasonable factfinder to find all the elements of the charged offenses beyond a reasonable doubt; an appellate court reviews questions of legal sufficiency de novo
2. where the government chooses to incorporate separate offenses into a Article 133, UCMJ, charge and where the military judge has instructed on the elements of those offenses, an appellate court will analyze the legal sufficiency of the Article 133, UCMJ, offense by determining whether there was legally sufficient evidence supporting all of the elements instructed upon by the military judge
3. an appellate court reviews a military judge’s decision on the admission of evidence in aggravation at sentencing for an abuse of discretion
4. where the military judge conducts a proper MRE 403 balancing on the record, an appellate court will not overturn his ruling unless it finds a clear abuse of discretion
5. an appellate court will not reverse a military judge’s determination on a mistrial absent clear evidence of an abuse of discretion
6. when a trial error is of constitutional dimension, an appellate court must determine whether the error and the military judge’s curative efforts rendered it harmless beyond a reasonable doubt; in analyzing this question, an appellate court asks whether there is a reasonable possibility that the error complained of might have contributed to the conviction; the question is not whether the members were totally unaware of the error; rather, the essence of a harmless error is that it was unimportant in relation to everything else the members considered on the issue in question; the error is analyzed in the context of the entire court-martial
7. in assessing whether a facially unreasonable delay has resulted in a due process violation, an appellate court weighs the following four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice
8. having found a due process violation in unreasonable post-trial delay, an appellate court will grant relief unless it finds, under the totality of the circumstances, that the government has met its burden of showing that the constitutional error was harmless beyond a reasonable doubt; determining whether a due process error was harmless beyond a reasonable doubt necessarily involves analyzing the case for “prejudice,” but that analysis for “prejudice” is separate and distinct from the consideration of prejudice as one of the four Barker [407 US 514 (1972)] factors
9. an appellate court reviews de novo the question of whether a constitutional error is harmless beyond a reasonable doubt
10. in addressing whether the appearance of unlawful command influence has been created in a particular situation, an appellate court considers, objectively, the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; it will find the appearance of unlawful command influence where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding
11. the question of whether a convening authority is an accuser under Article 1(9), UCMJ, is a question of law that an appellate court reviews de novo
12. the test for determining whether a convening authority is an accuser is whether he was so closely connected to the offense that a reasonable person would conclude that he had a personal interest in the matter; personal interests relate to matters affecting the convening authority’s ego, family, and personal property, and a convening authority’s dramatic expression of anger towards an accused might also disqualify the commander if it demonstrates personal animosity; a personal interest has been found to exist where, for example, the convening authority is the victim in the case, where the accused attempted to blackmail the convening authority, and where the accused had potentially inappropriate personal contacts with the convening authority’s fiancée

Miscellaneous Matters: Command Influence: Generally

1. unlawful command influence has often been referred to as the mortal enemy of military justice; Article 37(a), UCMJ, provides in relevant part that no person subject to the UCMJ may attempt to coerce or influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case; even the mere appearance of unlawful command influence may be as devastating to the military justice system as the actual manipulation of any given trial; unlawful command influence directed against prospective witnesses has been repeatedly condemned
2. communications between various senior military officers and members of a command investigation board [CIB] that investigated an aircraft mishap involving appellant did not demonstrate that CIB members were wrongfully influenced and subject to unlawful command influence, where appellant failed to show that the senior military officials’ interest in the CIB was anything other than proper, official, and lawfully directed at completing a quality and thorough investigation
3. public involvement of senior military officers in the aftermath and investigation of highly publicized aircraft mishap involving appellant did not demonstrate that the actions of any of those officials improperly influenced appellant’s court-martial, where appellant failed to point to any specific witnesses who decided not to testify because of alleged statements by senior military officials or any other specific facts that the court-martial process was tainted by unlawful command influence
4. in addressing whether the appearance of unlawful command influence has been created in a particular situation, an appellate court considers, objectively, the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; it will find the appearance of unlawful command influence where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding
5. under the facts of this case, the comments made by senior military officials in the aftermath of an aircraft mishap involving appellant and their official involvement in the command investigation board [CIB] of the incident could not reasonably be perceived by a disinterested member of the public as improper command influence or otherwise indicative of an unfair proceeding, where appellant failed to show that the senior military officials’ interest in the CIB was anything other than proper, official, and lawfully directed at completing a quality and thorough investigation, and where appellant failed to point to any specific witnesses who decided not to testify because of alleged statements by senior military officials or any other specific facts that the court-martial process was tainted by unlawful command influence; appellant was acquitted on all of the charges that were filed after the CIB issued its recommendation, and the CIB was neither aware of nor considered the obstruction of justice conduct underlying the conduct unbecoming, Article 133, UCMJ, charges at this court-martial; unsurprisingly, appellant was unable to allege facts which, if true, would constitute unlawful command influence when the CIB members were unaware of the conduct underlying the current charges

Miscellaneous Matters: Command Influence: Burdens

1. an accused has the initial burden of raising the issue of unlawful command influence; this burden at trial is to show facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings; on appeal, the defense must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the cause of the unfairness; mere speculation that unlawful command influence occurred because of a specific set of circumstances is not sufficient

Miscellaneous Matters: Speedy Trial: Post-Trial

1. in assessing whether a facially unreasonable delay has resulted in a due process violation, an appellate court weighs the following four Barker [407 US 514 (1972)] factors: (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice
2. the unreasonable post-trial delay of over eight years in this case from the time appellant was sentenced to the CCA’s initial opinion violated appellant’s due process right to a speedy post-trial review and appeal; although appellant did not assert his right to a timely review until the CCA raised the issue, sua sponte, in its initial decision, and failed to establish prejudice, the length of delay was facially unreasonable, and there were no legally supportable explanations for the delay
3. having found a due process violation in unreasonable post-trial delay, an appellate court will grant relief unless it finds, under the totality of the circumstances, that the government has met its burden of showing that the constitutional error was harmless beyond a reasonable doubt; determining whether a due process error was harmless beyond a reasonable doubt necessarily involves analyzing the case for “prejudice,” but that analysis for “prejudice” is separate and distinct from the consideration of prejudice as one of the four Barker [407 US 514 (1972)] factors
4. under the totality of the circumstances, the due process violation arising from the post-trial delay of over eight years in this case from the time appellant was sentenced to the CCA’s initial opinion was harmless beyond a reasonable doubt, where there was no convincing evidence of prejudice in the record and prejudice from the length of the delay alone would not be presumed