U.S. v. Schweitzer, 68 M.J. 133

First Principles: Constitutional Matters: Due Process

1. convicted servicemembers have a due process right to timely review and appeal of courts-martial convictions; to rebut a due process violation, the government must show that the error was harmless beyond a reasonable doubt under the totality of the circumstances; where appellant has not suffered any prejudice under the fourth prong of the Moreno [63 MJ 129 (CAAF 2006)] speedy review and appeal test - ongoing prejudice in the form of oppressive incarceration, undue anxiety, or the impairment of the ability to prevail in a retrial - the government may more readily demonstrate that any error is harmless beyond a reasonable doubt

Military Justice Personnel: Convening Authority: Disqualification

1. as long as the individual who convenes the court-martial is one of the persons described by statute as having such authority, the disqualification of the convening authority under Articles 22(b) or 23(b), UCMJ, for being an accuser under Article 1(9), UCMJ, does not deprive the court-martial of jurisdiction
2. appellant’s unconditional guilty pleas to conduct unbecoming an officer waived his objection on appeal that the officer acting as the convening authority in his case was also an accuser; because the officer was authorized under Article 22(a), UCMJ, to convene appellant’s court-martial, any error was nonjurisdictional, and at trial, appellant explicitly acknowledged understanding that his guilty pleas waived on appeal the objection to the convening authority being an accuser

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

1. an officer’s conduct need not violate other provisions of the UCMJ or even be otherwise criminal to violate Article 133, UCMJ; the gravamen of the offense is that the officer’s conduct disgraces him personally or brings dishonor to the military profession such as to affect his fitness to command the obedience of his subordinates so as to successfully complete the military mission; clearly, then, the appropriate standard for assessing criminality under Article 133 is whether the conduct or act charged is dishonorable and compromising as hereinbefore spelled out - this notwithstanding whether or not the act otherwise amounts to a crime
2. in this case, there was no substantial basis in law or fact for setting aside appellant’s guilty pleas to conduct unbecoming an officer by obstructing justice, where appellant admitted knowing that he was obstructing justice by destroying a videotape he knew would have been of significant interest to Italian criminal authorities investigating the death of twenty persons, and that such conduct was wrong; appellant’s admissions were sufficient to establish that his conduct was unbecoming an officer - it was dishonorable, disgraced him personally, and compromised his fitness to command the obedience of his subordinates so as to successfully complete the military mission; furthermore, there was nothing in the record to suggest that appellant was not on notice that such conduct was unbecoming an officer, and he never made such a claim at trial

Trial Stages: Merits: Guilty Pleas

1. RCM 910(j) provides a bright-line rule - an unconditional guilty plea which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense to which the plea was made; the point is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case
2. an unconditional guilty plea generally waives all defects which are neither jurisdictional nor a deprivation of due process of law; nevertheless, on occasion, an unconditional guilty plea by itself does not waive an objection on appeal to a nonfactual issue, such as multiplicity, speedy trial under Article 10, UCMJ, and the defect of a specification that fails to state an offense
3. in this case, there was no substantial basis in law or fact for setting aside appellant’s guilty pleas to conduct unbecoming an officer by obstructing justice, where appellant admitted knowing that he was obstructing justice by destroying a videotape he knew would have been of significant interest to Italian criminal authorities investigating the death of twenty persons, and that such conduct was wrong; appellant’s admissions were sufficient to establish that his conduct was unbecoming an officer - it was dishonorable, disgraced him personally, and compromised his fitness to command the obedience of his subordinates so as to successfully complete the military mission; furthermore, there was nothing in the record to suggest that appellant was not on notice that such conduct was unbecoming an officer, and he never made such a claim at trial

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. in the absence of evidence to the contrary, judges of the courts of criminal appeals are presumed to know the law and to follow it

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

1. a court of criminal appeals may affirm only the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; under Article 66(c), a CCA has the authority to grant relief for excessive post-trial delay without a showing of actual prejudice within the meaning of Article 59(a), UCMJ, if it deems relief appropriate under the circumstances; the CCA is required to determine what findings and sentence should be approved, based on all the facts and circumstances reflected in the record, including unexplained and unreasonable post-trial delay
2. because in the absence of evidence to the contrary, judges of the courts of criminal appeals are presumed to know the law and to follow it, there is no reason to doubt that the CCA panel in appellant’s case considered discretionary relief before affirming his sentence; furthermore, under the totality of the circumstances, the CCA did not abuse its discretion in not granting discretionary sentencing relief on the basis of the eight-year delay from the announcement of the sentence until its original opinion

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

1. once a military judge has accepted an accused’s guilty pleas and entered findings of guilty, an appellate court will not set them aside unless it finds a substantial basis in law or fact for questioning the pleas
2. convicted servicemembers have a due process right to timely review and appeal of courts-martial convictions; to rebut a due process violation, the government must show that the error was harmless beyond a reasonable doubt under the totality of the circumstances; where appellant has not suffered any prejudice under the fourth prong of the Moreno [63 MJ 129 (CAAF 2006)] speedy review and appeal test - ongoing prejudice in the form of oppressive incarceration, undue anxiety, or the impairment of the ability to prevail in a retrial - the government may more readily demonstrate that any error is harmless beyond a reasonable doubt

Trial Stages: Appeals: Waiver

1. RCM 910(j) provides a bright-line rule - an unconditional guilty plea which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense to which the plea was made; the point is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case
2. an unconditional guilty plea generally waives all defects which are neither jurisdictional nor a deprivation of due process of law; nevertheless, on occasion, an unconditional guilty plea by itself does not waive an objection on appeal to a nonfactual issue, such as multiplicity, speedy trial under Article 10, UCMJ, and the defect of a specification that fails to state an offense
3. appellant’s unconditional guilty pleas to conduct unbecoming an officer waived his objection on appeal that the officer acting as the convening authority in his case was also an accuser; because the officer was authorized under Article 22(a), UCMJ, to convene appellant’s court-martial, any error was nonjurisdictional, and at trial, appellant explicitly acknowledged understanding that his guilty pleas waived on appeal the objection to the convening authority being an accuser

Miscellaneous Matters: Speedy Trial: Post-Trial

1. convicted servicemembers have a due process right to timely review and appeal of courts-martial convictions; to rebut a due process violation, the government must show that the error was harmless beyond a reasonable doubt under the totality of the circumstances; where appellant has not suffered any prejudice under the fourth prong of the Moreno [63 MJ 129 (CAAF 2006)] speedy review and appeal test - ongoing prejudice in the form of oppressive incarceration, undue anxiety, or the impairment of the ability to prevail in a retrial - the government may more readily demonstrate that any error is harmless beyond a reasonable doubt
2. under the totality of the circumstances, the violation of appellant’s due process right to speedy review and appeal arising from a eight-year delay from the announcement of his sentence until the CCA issued its original opinion in his case was harmless beyond a reasonable doubt, where there was no evidence that appellant suffered any prejudice as defined in prong four of the Moreno [63 MJ 129 (CAAF 2006)] speedy review and appeal test - ongoing prejudice in the form of oppressive incarceration, undue anxiety, or the impairment of the ability to prevail in a retrial
3. a court of criminal appeals may affirm only the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved; under Article 66(c), a CCA has the authority to grant relief for excessive post-trial delay without a showing of actual prejudice within the meaning of Article 59(a), UCMJ, if it deems relief appropriate under the circumstances; the CCA is required to determine what findings and sentence should be approved, based on all the facts and circumstances reflected in the record, including unexplained and unreasonable post-trial delay
4. because in the absence of evidence to the contrary, judges of the courts of criminal appeals are presumed to know the law and to follow it, there is no reason to doubt that the CCA panel in appellant’s case considered discretionary relief before affirming his sentence; furthermore, under the totality of the circumstances, the CCA did not abuse its discretion in not granting discretionary sentencing relief on the basis of the eight-year delay from the announcement of the sentence until its original opinion