U.S. v. Smith, 85 M.J. 283

First Principles: Constitutional Matters: Generally

1. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege; for these reasons, when an appellant alleges for the first time on appeal that his conviction was unconstitutional as applied to him, the CAAF generally declines to find waiver and instead applies plain error review; under such review, the appellant bears the burden of pointing to particular facts in the record that prove why his interests should overcome the determinations of Congress and the President that his conduct should be proscribed

First Principles: Constitutional Matters: First Amendment

1. the government may place additional burdens on a servicemember's First Amendment free speech rights due to the unique character of the military community and mission
2. the First Amendment permits the following restrictions upon the content of speech: (1) incitement to imminent lawless action; (2) obscenity; (3) defamation; (4) speech integral to criminal conduct; (5) fighting words; (6) child pornography; (7) fraud; (8) true threats; and (9) speech presenting some grave and imminent threat the government has the power to prevent; if a content-based restriction on speech does not fall within one of these historically recognized categories, the restriction is presumed to be unconstitutional; however, content-based restrictions on speech may be justified, notwithstanding this presumption, if the government proves that they are narrowly tailored to serve compelling state interests
3. there is no catchall First Amendment balancing test that operates outside of the designated categories of unprotected speech
4. the dangerous speech test has effectively been abrogated by the more speaker-friendly test in which speech constitutes incitement only if it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action; applying the test in this case, appellant's statement to a gas station employee ("Tell that pretty boy in there that there are some hard hitting people in these streets, and he better watch his back") was not unprotected because it was not likely to incite any imminent lawless action where the words were directed at a person not present and the employee chuckled in response
5. the category of unprotected "fighting words" are words that are likely to provoke the average person to retaliation; however, speech does not fall within the fighting words category if it was not directed to a specific person and was unlikely to provoke a violent response; in this case, appellant's words to a gas station employee ("Tell that pretty boy in there that there are some hard hitting people in these streets, and he better watch his back") were not fighting words where they were directed at a person who was not present and who did not hear the words
6. the First Amendment permits a ban on true threats; true threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals; in this case, appellant's statement to a gas station employee ("Tell that pretty boy in there that there are some hard hitting people in these streets, and he better watch his back") did not qualify as a true threat where the statement was conditional in nature in that it only suggested that someone might try to harm a customer in the gas station if the customer did not watch his back and appellant did not claim to be a hard hitter himself or that he knew any such person; appellant's statement simply could be interpreted as a warning and not as a threat to cause any harm

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Presumptions

1. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege; for these reasons, when an appellant alleges for the first time on appeal that his conviction was unconstitutional as applied to him, the CAAF generally declines to find waiver and instead applies plain error review; under such review, the appellant bears the burden of pointing to particular facts in the record that prove why his interests should overcome the determinations of Congress and the President that his conduct should be proscribed

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege; for these reasons, when an appellant alleges for the first time on appeal that his conviction was unconstitutional as applied to him, the CAAF generally declines to find waiver and instead applies plain error review; under such review, the appellant bears the burden of pointing to particular facts in the record that prove why his interests should overcome the determinations of Congress and the President that his conduct should be proscribed

Trial Stages: Pretrial: Charges and Specifications

1. the government controls the charge sheet

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

1. the CAAF reviews issues of legal sufficiency de novo
2. whether a statute is constitutional as applied is an issue that the CAAF reviews de novo
3. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege; for these reasons, when an appellant alleges for the first time on appeal that his conviction was unconstitutional as applied to him, the CAAF generally declines to find waiver and instead applies plain error review; under such review, the appellant bears the burden of pointing to particular facts in the record that prove why his interests should overcome the determinations of Congress and the President that his conduct should be proscribed
4. historically, it has been the CAAF's general practice to remand to the CCAs for sentence reassessment or a rehearing on the sentence whenever it set aside at least one finding of guilty; in the Military Justice Act of 2016, National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), Congress introduced segmented sentencing in which a separate term of confinement and fine is adjudged for each specification in which there was a finding of guilty when sentencing is conducted by the military judge; these provisions became effective on January 1, 2019, and cases with segmented sentences are now reaching the CAAF; although segmented sentencing significantly simplifies sentence reassessment after a specification has been dismissed, the CAAF is mindful that some reassessment is still necessary for the unitary (nonsegmented) component of the sentence, such as the forfeiture of pay and allowances, the reduction in pay grade, and the punitive separation; because Congress vested the CCAs with express statutory authority to conduct sentence reassessment in Article 66(d)(1)(A), UCMJ, and because a remand will give the parties a full and fair opportunity to be heard, the CAAF finds it appropriate to continue its general practice of remanding cases to the CCAs after a specification has been set aside for sentence reassessment or a rehearing on the sentence

Trial Stages: Appeals: Remedies › Remand

1. historically, it has been the CAAF's general practice to remand to the CCAs for sentence reassessment or a rehearing on the sentence whenever it set aside at least one finding of guilty; in the Military Justice Act of 2016, National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), Congress introduced segmented sentencing in which a separate term of confinement and fine is adjudged for each specification in which there was a finding of guilty when sentencing is conducted by the military judge; these provisions became effective on January 1, 2019, and cases with segmented sentences are now reaching the CAAF; although segmented sentencing significantly simplifies sentence reassessment after a specification has been dismissed, the CAAF is mindful that some reassessment is still necessary for the unitary (nonsegmented) component of the sentence, such as the forfeiture of pay and allowances, the reduction in pay grade, and the punitive separation; because Congress vested the CCAs with express statutory authority to conduct sentence reassessment in Article 66(d)(1)(A), UCMJ, and because a remand will give the parties a full and fair opportunity to be heard, the CAAF finds it appropriate to continue its general practice of remanding cases to the CCAs after a specification has been set aside for sentence reassessment or a rehearing on the sentence

Trial Stages: Appeals: Remedies › Sentence reassessment

1. historically, it has been the CAAF's general practice to remand to the CCAs for sentence reassessment or a rehearing on the sentence whenever it set aside at least one finding of guilty; in the Military Justice Act of 2016, National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), Congress introduced segmented sentencing in which a separate term of confinement and fine is adjudged for each specification in which there was a finding of guilty when sentencing is conducted by the military judge; these provisions became effective on January 1, 2019, and cases with segmented sentences are now reaching the CAAF; although segmented sentencing significantly simplifies sentence reassessment after a specification has been dismissed, the CAAF is mindful that some reassessment is still necessary for the unitary (nonsegmented) component of the sentence, such as the forfeiture of pay and allowances, the reduction in pay grade, and the punitive separation; because Congress vested the CCAs with express statutory authority to conduct sentence reassessment in Article 66(d)(1)(A), UCMJ, and because a remand will give the parties a full and fair opportunity to be heard, the CAAF finds it appropriate to continue its general practice of remanding cases to the CCAs after a specification has been set aside for sentence reassessment or a rehearing on the sentence

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

1. the CAAF reviews issues of legal sufficiency de novo
2. whether a statute is constitutional as applied is an issue that the CAAF reviews de novo
3. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege; for these reasons, when an appellant alleges for the first time on appeal that his conviction was unconstitutional as applied to him, the CAAF generally declines to find waiver and instead applies plain error review; under such review, the appellant bears the burden of pointing to particular facts in the record that prove why his interests should overcome the determinations of Congress and the President that his conduct should be proscribed

Trial Stages: Appeals: Waiver

1. there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege; for these reasons, when an appellant alleges for the first time on appeal that his conviction was unconstitutional as applied to him, the CAAF generally declines to find waiver and instead applies plain error review; under such review, the appellant bears the burden of pointing to particular facts in the record that prove why his interests should overcome the determinations of Congress and the President that his conduct should be proscribed