U.S. v. Anderson, 68 M.J. 378

First Principles: Constitutional Matters: Double Jeopardy

1. if a court, contrary to the intent of Congress, imposes multiple convictions and punishments under different statutes for the same act or course of conduct, the court violates the double jeopardy clause of the Constitution

First Principles: Constitutional Matters: Due Process

1. a trial is fundamentally unfair where the government’s conduct is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction

Military Justice Personnel: Defense Function: Experts, Investigators -- Appointment to Defense Team

1. servicemembers are entitled to government-provided expert assistance if such assistance is necessary to their defense; the government must provide the expert if the accused establishes that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop; when the defense requests a nonmilitary expert, the defense must provide an estimated cost of employment and illustrate why a military expert would be an inadequate substitute; while the military judge is not required to provide the particular expert requested, if the defense shows that expert assistance is necessary, an adequate substitute must be provided
2. the decision to deny appellant’s request for the expert assistance of a civilian forensic psychologist was not an abuse of discretion in a prosecution for attempting to give intelligence to the enemy; there was no reason beyond a childhood diagnosis of attention deficit disorder and the convening of an RCM 706 board to suggest that appellant might lack the mental capacity to form the specific intent required, and there was no assertion, after appellant’s subsequent request for a government-appointed expert in clinical psychology was granted, that such expert was inadequate

Core Criminal Law Subjects: Crimes: Article 104 - Aiding the Enemy Pre-2019 offenses

1. charges of attempting to give intelligence to the enemy, attempting to communicate with the enemy, and attempting to aid the enemy did not preempt the charge of conduct prejudicial to good order and discipline or service discrediting conduct under the general article; the legislative history of Article 104, UCMJ, does not clearly indicate that Congress intended for offenses similar to those at issue to only be punishable under Article 104, UCMJ, to the exclusion of Article 134, UCMJ; furthermore, while the two charges in this case have parallel facts, as charged they are nonetheless directed at distinct conduct; the Article 104, UCMJ, charge was directed at appellant’s attempt to aid the enemy directly; the Article 134, UCMJ, charge was directed towards the distribution of sensitive material to individuals not authorized to receive it; unlike Article 104, UCMJ, the general offense as charged prohibits the dissemination of the information regardless of the intent behind that dissemination; if this distinction was not permissible in light of Article 104, UCMJ, Congress was free to clearly state that Article 104, UCMJ, supersedes Article 134, UCMJ, in this context

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. the preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132; however, simply because the offense charged under Article 134, UCMJ, embraces all but one element of an offense under another article does not trigger operation of the preemption doctrine; in addition, it must be shown that Congress, through direct legislative language or express legislative history, intended the other punitive article to cover a class of offenses in a complete way
2. charges of attempting to give intelligence to the enemy, attempting to communicate with the enemy, and attempting to aid the enemy did not preempt the charge of conduct prejudicial to good order and discipline or service discrediting conduct under the general article; the legislative history of Article 104, UCMJ, does not clearly indicate that Congress intended for offenses similar to those at issue to only be punishable under Article 104, UCMJ, to the exclusion of Article 134, UCMJ; furthermore, while the two charges in this case have parallel facts, as charged they are nonetheless directed at distinct conduct; the Article 104, UCMJ, charge was directed at appellant’s attempt to aid the enemy directly; the Article 134, UCMJ, charge was directed towards the distribution of sensitive material to individuals not authorized to receive it; unlike Article 104, UCMJ, the general offense as charged prohibits the dissemination of the information regardless of the intent behind that dissemination; if this distinction was not permissible in light of Article 104, UCMJ, Congress was free to clearly state that Article 104, UCMJ, supersedes Article 134, UCMJ, in this context

Core Criminal Law Subjects: Witnesses: Experts

1. servicemembers are entitled to government-provided expert assistance if such assistance is necessary to their defense; the government must provide the expert if the accused establishes that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop; when the defense requests a nonmilitary expert, the defense must provide an estimated cost of employment and illustrate why a military expert would be an inadequate substitute; while the military judge is not required to provide the particular expert requested, if the defense shows that expert assistance is necessary, an adequate substitute must be provided

Core Criminal Law Subjects: Witnesses: Production of

1. servicemembers are entitled to government-provided expert assistance if such assistance is necessary to their defense; the government must provide the expert if the accused establishes that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop; when the defense requests a nonmilitary expert, the defense must provide an estimated cost of employment and illustrate why a military expert would be an inadequate substitute; while the military judge is not required to provide the particular expert requested, if the defense shows that expert assistance is necessary, an adequate substitute must be provided

Trial Stages: Appeals: Harmless / Prejudicial Error

1. any due process violation occurring after the military judge denied appellant’s request for a forensic psychologist expert witness and then the government presented a forensic psychiatrist in rebuttal to the defense non-forensic experts in psychology and psychiatry, was harmless beyond a reasonable doubt in a prosecution of attempting to give intelligence to the enemy, where the limited testimony of the government’s rebuttal expert added little to the government’s case and merely confirmed the plausibility of the direct testimony of appellant’s experts

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

1. a military judge’s ruling regarding the appointment of a government-funded expert is reviewed for an abuse of discretion and will only be overturned if the findings of fact are clearly erroneous or the decision is influenced by an erroneous view of the law
2. where appellant raises a due process argument, an appellate court’s test for prejudice must be whether the challenged action was harmless beyond a reasonable doubt
3. an appellate court reviews multiplicity claims de novo

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Generally

1. if a court, contrary to the intent of Congress, imposes multiple convictions and punishments under different statutes for the same act or course of conduct, the court violates the double jeopardy clause of the Constitution

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not
2. charge of conduct prejudicial to good order and discipline was not multiplicious with charge of attempting to knowingly give intelligence to the enemy or attempting to communicate with the enemy, where each charge required proof of a fact that the other did not
3. charge of attempting to knowingly give intelligence to the enemy was not multiplicious with charge of attempting to communicate with the enemy, where each charge required proof of a fact that the other did not

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Unreasonable Multiplication of Charges

1. five factors should be considered when determining if multiple findings of guilt constitute an unreasonable multiplication of charges: (1) whether appellant objected at trial that there was an unreasonable multiplication of charges and/or specifications; (2) whether each charge and specification was aimed at distinctly separate criminal acts; (3) whether the number of charges and specifications misrepresented or exaggerated appellant’s criminality; (4) whether the number of charges and specifications unreasonably increased appellant’s punitive exposure; and (5) whether there was any evidence of prosecutorial overreaching or abuse in the drafting of the charges
2. charging appellant with attempting to give intelligence to the enemy, attempting to communicate with the enemy, attempting to aid the enemy, and conduct prejudicial to good order and discipline or service discrediting conduct, based on appellant’s e-mail, telephone, and face-to-face meetings with persons appellant believed to be the enemy, was not an unreasonable multiplication of charges, where appellant completed any number of independent actions that alone would have been sufficient to support specifications in addition to the ones with which he was charged, where appellant did object at trial, where his criminality was not exaggerated by the manner in which the conduct was charged, and where his punitive exposure was not increased